USA. v. Saya, 00-10004
| Decision Date | 08 May 2001 |
| Docket Number | No. 00-10004,00-10004 |
| Citation | 247 F.3d 929 |
| Parties | (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBIN SIDNEY SAYA, Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Judy Clarke, Federal Defenders of Eastern Washington and Idaho, Spokane, Washington, for the defendant-appellant.
Craig H. Nakamura, Office of the United States Attorney, Honolulu, Hawaii, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii. D.C. No. CR-95-01065-ACK. Alan C. Kay, District Judge, Presiding.
Before: John T. Noonan, M. Margaret McKeown and Kim McLane Wardlaw, Circuit Judges.
Robin Sidney Saya appeals his conviction and 240-month sentence following a jury trial on one count of conspiracy to possess with intent to distribute crystal methamphetamine, 21 U.S.C. 846, and one count of attempted possession with intent to distribute crystal methamphetamine, 21 U.S.C. 841(a)(1) and 846. Saya contends: (1) that his conviction requires reversal because the jury was exposed to extraneous information; (2) that he was improperly classified as a "career offender" under U.S.S.G. 4B1.1; and (3) that his sentence was improperly calculated in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We affirm both the conviction and sentence.
Saya's conviction stems from a "reverse sting" operation undertaken by the Honolulu Police Department and the FBI in 1995. An FBI agent posed as a corrupt FBI agent willing to sell crystal methamphetamine (commonly known as "ice") stolen out of the FBI evidence locker. The agent met with Alfredo Bunag and offered to sell him fifty pounds of ice for $ 1 million. Bunag said he had only $ 500,000 but that he would obtain the rest from others, among them Saya, who would "invest" in the deal. Soon thereafter, Saya delivered $ 230,000 to Bunag; Robbie Sylva, another "investor," delivered $ 200,000. Bunag met with the agents and gave them $ 860,000 in exchange for two kilograms of ice. The agents promptly arrested Bunag, who immediately agreed to cooperate with the authorities. At the agents' direction, Bunag called Saya to lure him to the hotel room where the transaction was to have taken place; Saya was then arrested as well.
Saya was originally charged in November 1995 along with Bunag, Sylva, Brank Burke, Harland Kanahele, and Clinton Mau with possession with intent to distribute. Bunag, Kanahele, and Mau subsequently pled guilty. Sylva, Burke, and Saya stood trial in January 1997 in Hawaii; it ended in a mistrial. A fourth superceding indictment was then returned. Saya successfully moved for a change of venue due to pretrial publicity, and the case was transferred to the Eastern District of Washington. Saya's case, however, was severed from that of his two co-defendants. He then requested that his case be sent back to Hawaii; his counsel stated that the publicity had since died down and that any lingering problems could be handled through jury voir dire.
Saya was tried before a jury in Honolulu in December 1998 and convicted on two counts: conspiracy to possess with intent to distribute and attempted possession with intent to distribute. After the trial, and with the court's permission, Saya's counsel contacted the jurors. Based on information contained in declarations provided by several of the jurors, Saya moved for a new trial.
The motion was based on allegations that jurors had discussed extraneous information pertaining to a 1993 incident at the Kukui Plaza parking garage in the Chinatown section of Honolulu. In that incident, Saya was driving his truck through the garage with his girlfriend Carol Ching in the passenger seat when Russell Cullen -- apparently a lifelong friend of Saya -- fired several shots into the truck, killing Ching and injuring Saya. Saya lost control of the truck, crashed through a wall, and knocked a parked car onto a bus on the street below. Saya's truck was left perched part way out of the garage, suspended over the street on the second floor of the garage. The dramatic scene attracted considerable media attention. Nothing in the record indicates that there was any connection between the Kukui Plaza shooting and the conduct relating to the drug deal that is the subject of Saya's current conviction.
Two jurors submitted declarations prepared by Saya's counsel stating that the Kukui Plaza shooting had been mentioned during deliberations. A third juror stated that he had actually walked by Kukui Plaza on the day of the incident and had seen the truck hanging out of the garage and that, at the beginning of the trial, he recognized Saya from media reports several years back. The same three jurors later submitted declarations prepared by a prosecuting attorney clarifying and elaborating upon their earlier statements.
The district court held a hearing on Saya's motion for a new trial at which both parties presented argument. The court specifically asked counsel whether they wished to present live testimony; both the defense attorney and prosecutor declined. The district court denied Saya's motion for a new trial in a written order.
At sentencing, the district court determined that Saya was a "career offender" pursuant to U.S.S.G. 4B1.1. The two predicates for the career offender designation were a 1977 state murder conviction 1 and a witness intimidation conviction that same year, stemming from conduct related to the murder trial. The district court departed downward three levels based on diminished mental capacity and over-representation of Saya's criminal history, and also granted a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. 3E1.1. The court imposed a sentence of 240 months.
Saya claims that the district court erred by not hearing from live witnesses at an evidentiary hearing on the allegations of juror improprieties. We disagree. We review the denial of a post-verdict evidentiary hearing for an abuse of discretion. United States v. Langford, 802 F.2d 1176, 1180 (9th Cir. 1986).
As an initial matter, we note that although evidentiary hearings often include live testimony, we need not determine whether a defendant has a specific right to present such testimony because, here, Saya clearly waived any right he may have had. Saya clearly and unambiguously waived his right to present witnesses at the hearing on the motion for a new trial. At the outset of the hearing, the district court specifically asked Saya's counsel whether she wished to present live testimony. Her response in the negative could hardly have been clearer:
The Court: All right. Please be seated. No party has requested an evidentiary hearing. So I assume no one wants to put on an evidentiary hearing. . . .
Saya's Counsel: Well, your honor, the filing of the declarations, we feel, is our evidence, and that's all we request.
The Court: Okay. So that's all you want to put on, though?
Saya's Counsel: That's correct.
It is difficult to imagine a clearer case of waiver.
Aside from the waiver issue, there is no rule in this circuit requiring the district court to hold an evidentiary hearing upon every allegation of juror misconduct. In United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981), we did hold that "The trial court, upon learning of a possible incident of juror misconduct, must hold an evidentiary hearing to determine the precise nature of the extraneous information." But cases following Bagnariol have modified that seemingly categorical statement. United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) states current Ninth Circuit law on the subject: (citations omitted). We have further explained, "Although it is usually preferable to hold [an evidentiary] hearing," it is not necessary where "the court [knows] the exact scope and nature of the . . . extraneous information." United States v. Halbert, 712 F.2d 388, 389 (9th Cir. 1983); accord United States v. Langford, 802 F.2d 1176, 1180 (9th Cir. 1986).
What the district court did here to address the allegations of juror impropriety was weigh the submitted written declarations to determine whether Saya was entitled to a new trial. As noted above, we need not determine whether the court was required to go an extra step, i.e., to hear live testimony, because, given the opportunity to present witnesses, Saya declined. In sum, the district court carefully considered the allegations of juror misconduct, read the juror declarations, gave both parties an opportunity to present live witnesses, conducted a hearing where both sides made legal arguments, and issued a thorough, well-reasoned order denying Saya's motion. Given the circumstances of this case, the district court did not abuse its discretion in the manner it addressed Saya's allegations of juror improprieties.
Saya claims two separate instances of juror misconduct: (1) one of the jurors, whom we will refer to as "Juror T," 2 failed to answer honestly questions regarding his knowledge of the Kukui Plaza incident, and Saya's connection to it, during voir dire, and (2) the jury was improperly exposed to extraneous information regarding Kukui Plaza during its deliberations. We address these claims in turn.
We review for abuse of discretion the district court's denial of a motion for a new trial...
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U.S.a. v. Williams
...Tarpinian's notes from the initial interview. We review de novo an alleged violation of the Confrontation Clause. United States v. Saya, 247 F.3d 929, 937 (9th Cir.), cert. denied, 151 L. Ed. 2d 404, 122 S. Ct. 493 Defendant relies primarily on United States v. Harris, 543 F.2d 1247 (9th Ci......
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