United States v. Adams
United States v. Adams
Opinion of the Court
The appellants challenge their narcotic related convictions on several grounds, including improper jury contact, prosecutorial misconduct, and sufficiency of the evidence. For the reasons discussed below, we affirm their convictions.
The government secured an eight count indictment charging nineteen individuals with various narcotics crimes as a result of their participation in a marijuana smuggling operation. The case involves two separate importations of marijuana. The first occurred in September 1979 and involved the vessel “Christine.” The Christine sailed to the Caribbean where it met a large ship that was carrying several thousand pounds of marijuana. The Christine took on 6,000 pounds of marijuana and sailed for Florida. The vessel anchored about twelve miles off the shore of Stein-hatchee, Florida. A helicopter off-loaded the marijuana and transported it to a “stash site” near Greenville, Florida. The second importation occurred in October 1979 and involved a freighter that was
I. IMPROPER JURY CONTACT
All nine appellants take issue with the district court’s
After the jury returned its verdicts, the judge interviewed the jurors individually and without counsel present. The judge learned that Juror Adams had in fact mentioned the incident in the jury room minutes before she disclosed to the judge that she had been contacted. The judge learned that when Adams arrived at the courthouse that morning, she began discussing the incident with a few jurors, but was stopped by the jurors when she revealed that the woman who approached her mentioned the trial and defendant Joe Reams. The other jurors told Adams to see the judge immediately about the incident. Adams then left the jury room and requested to see the judge. Transcripts of these post-verdict interviews and the interview with Juror Adams were prepared and given to the parties.
After counsel had an opportunity to review these transcripts, the court again interviewed the jurors separately, but with the parties and their counsel present. Counsel were allowed to submit questions to the judge, who questioned the jurors. The interviews revealed that two of the twelve jurors did not know that a juror had been contacted. The other ten jurors were aware to various degrees that Adams had been contacted. Five jurors knew that she had been contacted, but were unaware that a name had been mentioned. The other five jurors knew that she had been contacted and that Reams’ name was mentioned. The alternate also knew of a contact, but was unaware of any names mentioned.
The court found that the jury’s deliberations were not biased by the improper contact. The jurors testified that after Adams left the jury room the incident was never again discussed. Each juror testified that the improper contact did not affect the deliberations and had no bearing whatsoever on the verdicts. The court noted that the jurors were candid and forthcoming in their responses to the questions. No juror hesitated or was reluctant in answering. The court concluded that the defendants were not prejudiced, and denied all motions for mistrial and new trial.
The appellants contend that they were deprived of their constitutional right to be present at all stages of the trial and their parallel right pursuant to Fed.R.Crim.P. 43 when the court interviewed Juror Adams and the other members of the jury outside their presence and the presence of counsel. The appellants also contend that the court erred in not examining each juror in the presence of counsel immediately upon discovering that Juror Adams had been contacted. Finally, they contend that the court erred in denying their motion for new trial because they were prejudiced by the improper contact.
We hold that the appellants’ constitutional right to be present at every stage of the criminal proceedings was not violated by the court’s interview of Juror Adams. “ ‘[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.’ ” United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459-60, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment)). See United States v. Watchmaker, 761 F.2d 1459, 1466 (11th Cir. 1985) (where trial judge took great care in framing his comments, where transcripts were made available to counsel,
This court recently reviewed the relevant case law in United States v. Caldwell, 776 F.2d 989, 997-98 (11th Cir. 1985), and concluded that the cases fall along a continuum. At one end, the cases focus on the certainty that some impropriety exists. At the other end of the continuum, the cases focus on the seriousness of the accusation of impropriety. “The more serious the potential jury contamination, especially where alleged extrinsic influence is involved, the heavier the burden to investigate.” Id. at 998 (citing United States v. Brantley, 733 F.2d 1429 (11th Cir. 1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); United States v. Forrest, 620 F.2d 446 (5th Cir. 1980)). We are concerned here with the latter end of the continuum and are guided by United States v. Forrest, which is cited in both United States v. Brantley and United States v. Phillips.
Forrest involved a similar contact to that involved in the case at bar. Prior to closing arguments a juror in the Forrest case told the trial judge that she was approached by her niece in an effort to influence her to acquit the defendants. The discussion between the juror and the judge, however, took place in the judge’s chambers in the presence of counsel for both parties. The tainted juror assured the judge that the other jurors did not know of the contact. The court excused and replaced the juror, but did not examine the other jurors. The defendants were convicted. On appeal, the Fifth Circuit remanded for a hearing to determine whether the other members of the jury were prejudiced. The court of appeals held that the trial court’s investigation into the improper contact was inadequate, and that a tainted juror’s testimony that the other jurors knew nothing about the improper contact is an insufficient basis on which to conclude that the other jurors have not been contaminated. Forrest, 620 F.2d at 457-58. “Only the other jurors can enlighten [the court] properly on this subject.” Id. at 457.
The appellants contend that the Forrest examination of the other jurors in this case should have taken place before rather than after the verdicts were rendered. Although Forrest can be read to suggest that the examination of the jurors should take place if possible before the verdicts are rendered, failure to do so in this case is not reversible error because the post-verdict interviews in the presence of the parties and their counsel demonstrate that the jurors were not prejudiced. Such post-verdict interviews are constitutionally sufficient to decide allegations of juror impartiality. See Smith v. Phillips, 455 U.S. 209, 217-18, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954).
II. PROSECUTORIAL MISCONDUCT
The appellants contend that the following remarks made by the prosecutrix during the rebuttal portion of her closing arguments denied them a fair trial:
MS. SCHWARTZ (Prosecutrix): And as Bart Carver told you, dope dealers deal with dope dealers, and you have to know, you don’t find a swan in the sewer, and that’s what you get when — . [objection] [sustained]
Record XXXIII at 86.
MS. SCHWARTZ: I believe that the Government has proven the Defendants guilty — . [objection]
THE COURT: Continue. I got your point.
MRS. SCHWARTZ: I believe that the Government has proven, with the testimony and the evidence, that the Defendants are guilty beyond a reasonable doubt, [objection]
THE COURT: Continue.
Record XXXIII at 98-99. The appellants argue that the comment about “dope dealers” and “sewers” was inflamatory because it depicts the defendants as drug dealers emanating from the sewer. Their argument is without merit. The appellants have taken the prosecutrix’ statement out of context. The record clearly indicates that the prosecutrix was not referring to the defendants. Rather, she was referring to the government witnesses, whose credibility had been attacked by defense counsel on cross-examination and in closing arguments. The prosecutrix was merely reminding the jury that the government had conceded all along that its witnesses were drug dealers. Record XXXIII at 85. With respect to the remarks concerning the guilt of the defendants, the appellants contend that the prosecutrix’ expression of her personal opinion denied them a fair trial. We disagree. “When the prosecutor voices a personal opinion but indicates this belief is based on evidence in the record, the comment does not require a new trial.” United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983), aff'd on rehearing, 736 F.2d 1480 (11th Cir. 1984). A prosecutor may say, “ T believe the evidence has shown the defendant’s guilt, [but not,] I believe that the defendant is guilty.’ ” United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978) (citations omitted). The prosecutrix’ statements in the case at bar are consistent with those allowed in Granville and Morris. We conclude, therefore, that the prosecutrix’ comments were within permissible bounds.
Appellant Pintado-Otero contends that the district court erred in denying her motion for a mistrial as a result of the following statement by a government witness:
I was told over the radio or telephone, I forget, when I was called to set up surveillance, that we had a group of Latins that were probably in town to do a dope deal and that they were making phone calls to known dopers in Miami or somewhere south.
Record XXI at 130. This statement was made despite the district court’s previous instruction to the government that its witnesses were not to testify that telephone calls were made to “known drug smugglers.” Pintado-Otero argues that the witness’ remark implies that Pintado-Otero, one of only two Latin defendants, was a narcotics dealer from Miami, making phone calls to her cohorts — “known dopers.” Pin-tado-Otero argues that the government produced no evidence, however, that she was involved in any prior narcotics transactions. Pintado-Otero concludes that consequently the remark was prejudicial.
III. IMPEACHMENT EVIDENCE
Appellants McMullen and the Hockadays were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. Coconspirator and government witness M.L. Tucker implicated the defendants in these crimes. Through cross-examination defense counsel revealed that Tucker was serving time in prison for other crimes when he agreed to cooperate with federal officials in return for his early release from prison and immunity from prosecution for his involvement with the appellants in this case. Also on cross-examination, Tucker was asked whether his wife gave birth to their child while Tucker was in prison. Tucker responded that his child was born after he was released from prison. As part of the defendants’ case, appellant Jerry Hockaday attempted to introduce a hospital medical record through the testimony of the hospital records custodian. The medical record indicated that a woman gave birth to a child on September 9, 1982, while Tucker was in prison, and stated that Tucker was the father. Defense counsel argued at trial that the medical record was relevant for two reasons: first, it demonstrated that Tucker lied on cross-examination about the date of his child’s birth; and second, it revealed that Tucker had an additional motive to obtain an early release from prison — to be with his child. The court sustained the government’s objection that this was impeachment evidence as to a collateral matter. The appellants contend that the court erred in refusing to admit the record into evidence.
We hold that the district court did not err in refusing to admit the medical record. The birth date of Tucker’s child is clearly a collateral matter on which Tucker cannot be impeached by extrinsic evidence. See United States v. Russell, 717 F.2d 518, 520 (11th Cir. 1983). Further, although the importance of exposing a witness’ motivation to cooperate with the prosecution has been long recognized in this circuit, see generally Jenkins v. Wainwright, 763 F.2d 1390, 1392 (11th Cir. 1985) (and cases cited therein), cert. denied, — U.S. —, 106 S.Ct. 2290, 90 L.Ed.2d 730 (1986), we believe the cross-examination of Tucker sufficiently demonstrated his motivation to cooperate with the prosecution so that the evidence sought to be admitted was merely cumulative.
IV. SUFFICIENCY OF THE EVIDENCE
Appellants Elliott, Otero, and Morra challenge the sufficiency of the evidence against them. We review the evidence against the appellants in the light most favorable to the government, drawing all reasonable inferences in favor of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
£7] Appellant Elliott was convicted of conspiracy to possess marijuana and possession of marijuana with the intent to distribute. The government’s evidence against Elliott consists of the testimony of coconspirator and government witness, George Cottage. Cottage testified that he had known Lem North, one of the master
Elliott argues that this evidence only demonstrates his “ ‘mere presence’ in a suspicious climate.” We disagree.
For Elliott to be convicted of conspiracy to possess marijuana with the intent to distribute, “the government was required to prove beyond a reasonable doubt the existence of a conspiracy, his knowing participation in it, and his criminal intent.” United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir. 1985), cert. denied, — U.S. —, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). For Elliott to be convicted of the possession charge, “the government’s burden was to prove beyond a reasonable doubt that he knowingly possessed the marijuana, either actually or constructively, and that he intended to distribute it.” Id. We agree with Elliott that “mere presence” is insufficient to establish guilt on these charges. As this court recently recognized in Cruz-Valdez, however, the evidence in these cases “establishes not mere presence but presence under a particular set of circumstances.” Id. at 1545. We hold that from the circumstances in this case the jury could find Elliott guilty beyond a reasonable doubt as charged. See United States v. Walker, 720 F.2d 1527, 1538 (11th Cir. 1983) (the existence of a conspiracy may be proved by circumstantial evidence, including inferences from the conduct of the alleged participants), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The evidence demonstrated that Elliott accompanied Morrell to Valdosta not once but on two separate occasions for the same purpose — to broker the imported marijuana. The logical inference to be drawn from this evidence is that Elliott and Morrell had agreed to broker the marijuana and were knowingly participating in that agreement. Elliott accompanied Morrell to North’s hotel room where Morrell, Elliott’s coconspirator, obtained a sample. Both Elliott and Morell then met their prospective buyers, who sampled the marijuana. We believe that the jury also could have reasonably inferred that Elliott together with Morrell possessed the marijuana with the intent to distribute.
Appellant Pintado-Otero was convicted of conspiracy to possess marijuana with the intent to distribute, possession of marijuana with the intent to distribute, and the unlawful carrying of a firearm during the commission of a felony. The evidence against Pintado-Otero consists of the testimony of a Florida Marine Patrol Officer, and of a coeonspirator and government witness, Myra Labrador. Labrador testified that she was hired to accompany a man while he drove a motor home that was heavily loaded with marijuana. Man-and-woman combinations were needed to give the appearance of a “couple” vacationing in a motor home. Labrador testified that several other “couples” were hired to transport the marijuana in the same way. Labrador stated that she was placed in the back of a motor home with several others and taken to what was later identified as the stash site. Labrador identified appellant Pintado-Otero as one of the people in
Pintado-Otero argues that her mere presence in a vehicle transporting marijuana that was only accessible from the rear of the vehicle is insufficient to prove that she conspired to possess and possessed marijuana with the intent to distribute. Because these convictions must fall, her argument continues, so must the firearm conviction. We disagree.
The circumstances of Pintado-Otero’s presence in the vehicle transporting a substantial quantity of marijuana demonstrate that she was part of a conspiracy to possess and possessed marijuana. Pintado-Otero was among those people taken to the stash site for the purpose of transporting large quantities of marijuana out of Florida in motor homes. Her presence was essential to the success of the ruse — to give the appearance of a couple vacationing in a motor home. She was arrested in a motor home heavily loaded down with marijuana. The strong odor of marijuana was present in the cab of the motor home. The logical inference to be drawn from this evidence is that a conspiracy to possess the marijuana with the intent to distribute existed and that Pintado-Otero knowingly participated in it. In these particular circumstances, Pintado-Otero had no more or no less control over the progression and destination of the motor home and its contents than did the driver. Consequently, they shared at least constructive possession of the marijuana. See United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir. 1974). We hold that the evidence is more than sufficient for the jury to have inferred beyond a reasonable doubt that Pintado-Otero engaged in a conspiracy to possess and possessed marijuana with the intent to distribute.
Appellant Morra was convicted of conspiracy to import marijuana, conspiracy to possess marijuana with the intent to distribute, two counts of importation, and two counts of possession. John Thomas, who piloted the Christine, which was involved in the first importation, testified for the government that he was hired by appellant Morra to import the marijuana from the Caribbean to Florida. Morra told Thomas and a man named Bart Carver that the load was 20,000 pounds. Carver secured a vessel, the Christine, and prepared it for the first importation. When it was ready, the Christine sailed for the Caribbean. The vessel developed mechanical problems, and Thomas contacted Morra and defendant Ronnie Fripp, who sent a mechanic. On Morra’s instructions, Thomas sailed the Christine to the rendezvous with another ship where the Christine took on the 6,000 pounds of marijuana. When the Christine returned to Florida and arrived off the coast of Steinhatchee, Morra communicated with Thomas from a plane that circled above the vessel. Carver corroborated Thomas’ testimony, adding that Morra and Fripp were partners and that Morra assured him that there would be additional loads. Patrick Harrell testified that he was hired to “sit on the stash site.” Harrell met Morra, who Harrell stated was at the stash site when the marijuana was unloaded by the helicopters. Harrell testified that Morra, Fripp, and North were the masterminds of the scheme to import marijuana.
Morra concedes that the jury could have found him guilty beyond a reasonable doubt of conspiracy to import and importation of marijuana with respect to the first load. He argues that the evidence is insufficient, however, to support his conviction
V. CONCLUSION
In conclusion, we hold that the appellants were not prejudiced by the improper jury contact, that the comments by the prosecu-trix during closing argument were not improper, that the government witness’ testimony was not prejudicial, that the trial court did not err in refusing to admit the collateral evidence, and that the evidence is sufficient to support the appellants’ guilt beyond a reasonable doubt. Consequently we AFFIRM the appellants’ convictions.
. Appellants Adams, Elliott, Morrell, Pintado-Otero, the Hockadays, and McMullen were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 841, 846; 18 U.S.C. § 2. Pintado-Otero was also convicted of unlawfully carrying a firearm during the commission of a felony. See 18 U.S.C. § 924(c). Appellant Morra was convicted of conspiracy to import marijuana and conspiracy to possess marijuana with the intent to distribute. He was also convicted on two counts of importation of marijuana, and on two counts of possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 952, 960, 963, 841, and 846; 18 U.S.C. § 2.
. Honorable William Stafford, United States Chief District Judge for the Northern District of Florida.
. The relevant portion of the judge’s discussion with Juror Adams follows:
JUROR ADAMS: Well, this lady came to my house last night, I don’t know what time it was. ... She told me that she was trying to get a job at Dixie Packers, that’s where I work in Madison. Somebody told her ... where I lived at and I worked at Dixie Packers, and told her to come and talk to me about was they hiring at this present time at Dixie Packers. Well, I told her that I didn’t know because I hadn’t been to work in about two weeks and I didn’t know was they hiring. I said I was going to Tallahassee every day on trial, on jury duty. ... And she come in and she said, oh, well — I asked her where was she from. She told me she was from Greenville and she had been working — she was a store manager at some store, and the man that owned the store was selling it, and that she was trying to find her another job, and she was asking me was they hiring. And she said that the man — after I told her about I was going to Tallahassee, you know, that I didn’t know about was they hiring at the time or not, then she said "Well, maybe you know the man that owns the store because he’s on trial up there.” I said, "No, I don’t think I do.” And she said, "Well, his name is Joe Reeves (sic)." I said, "No, I haven’t heard of that name.” And she said, "Well they call him Joe Ball." And she said, "He owned the store that I worked at, that I was store manager, and he’s selling the store.” And he told her that they had him on trial for finding marijuana on his land and that he didn’t know nothing about it cause he had so many acres of land that he didn’t know that the marijuana was on his land, but they was trying to send him off for it. I said, "Well, I don’t know him, no, because I’m not on that trial." And I got off the subject____
And then when she was going out the door, she said, “Well, you listen when you go back up there," she said, “You listen for his name and maybe you’ll know him and then maybe you could help him, then I won't have to find me another job because I could still keep my job, because he said he didn’t do it, he didn’t know nothing about it.” And she left.
THE COURT: Did you recognize the lady?
JUROR ADAMS: No, I didn’t know her at all. ...
THE COURT: Did she — did you mention the jury service first?
JUROR ADAMS: Yeah, I did.
THE COURT: Uh-huh. And then that’s when she — ?
JUROR ADAMS: That’s when she said, "Well, maybe you know him, the man that owns the store, maybe you know him because he’s on trial up there," and she said, "Joe Reeves.” I said, no, no, I don’t know him.” She said, "Joe Ball, they call him Joe Ball.” I said, "No, I don’t think — " I said, “No, I’m not on that trial.”
THE COURT: Have you said anything to any other jurors?
JUROR ADAMS: No....
Record XXXII at 2-7.
. Appellants argue that testimony of a juror is inherently suspect in these circumstances. The Supreme Court rejected a similar argument in Smith v. Phillips, supra, and noted that "surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7.
Reference
- Full Case Name
- United States v. Jimmie Richard ADAMS, William Francis Elliott, James Henry Morrell, Jr., Elba Pintado-Otero, Luciano Morra, William Hinton Hockaday, Larry Henton Hockaday, James W. McMullen, Jerry Gray Hockaday
- Cited By
- 18 cases
- Status
- Published