United States v. Apolonio Lopez Aguirre , 147 F. App'x 893 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 7, 2005
No. 04-14511 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00533-CR-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
APOLONIO LOPEZ AGUIRRE,
a.k.a. Joel Lopez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 7, 2005)
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Apolonio Lopez Aguirre, a.k.a. Joel Lopez, appeals his convictions for
(1) possession of a firearm by an illegal alien, in violation of 18 U.S.C.
§ 922(g)(5), and (2) possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). We AFFIRM.
I. BACKGROUND
Aguirre was indicted and tried with codefendants for his participation in a
conspiracy to possess and distribute methamphetamine in Cullman, Alabama.
Following investigation by the Drug Enforcement Agency, one of the conspirators
agreed to cooperate and to conduct a controlled delivery, which involved
surveillance from an airplane by an investigator with the Cullman County Police
Department. The investigator observed a Lincoln Continental making the delivery.
The driver of the car was identified as Aguirre. When officers approached him,
Aguirre fled the area, climbed over a fence, and laid down in some brush. As
Aguirre was going over the fence, the investigating officer observed him throw
something to the ground, but he was unable to identify the object. The investigator
testified that he never observed anyone else in the area where he had witnessed
Aguirre throw the object. After a search of the area where the investigator had
seen the object thrown, an officer recovered a “hi-point semi-automatic pistol.” R4
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at 550. During his testimony regarding Aguirre’s course of travel in the Lincoln
Continental, the investigator referred to an aerial photograph of the scene.
Aguirre testified that he ran when the police arrived because he was an
illegal alien. R5 at 638. Aguirre admitted that he climbed over the fence, but
denied that he had a gun in his hand and claimed that he saw another individual
throw down the gun that was recovered from the scene. The jury found Aguirre
guilty of possession of a firearm as an illegal alien and as a convicted felon.
Thereafter, the judge told the parties that one of the jurors had informed a
courtroom deputy that one of the other jurors had looked at a map that was not
admitted into evidence and then, during the jury’s deliberations, had drawn a
picture or a diagram. The judge stated that he did not know whether the diagram
was a map of Cullman County or of the United States. The judge then stated that
“a map of the United States or a map of Cullman County, in all likelihood, if it had
been offered, would have been accepted without objection by judicial notice. And
it’s not that it’s untrue evidence that’s been admitted. We have no idea what the
map said, and that’s what concerns me.” Id. at 744. Aguirre moved for a mistrial.
He noted that the trial included testimony regarding his movements and asserted
that “there was no way to know how the jury used [the map] in their deliberation,
whatever information they got from the map, whether it was distance or what.” Id.
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at 748. The judge overruled Aguirre’s motion and responded that,
with regard to [] Mr. Aguirre, all the movements of the white
Continental, Lincoln Continental that I recall being testified about
occurred within the grouping of houses and trailers, all of which we
actually had an aerial photo of – not the movement, an aerial photo of
the grouping. And the description of the movement, while it’s
actually shown it went from here pointing on the photograph to here
on the photograph, so I really think that there is no way that a map
could add light either way with regard to the Continental.
Id. The prosecutor stated that the judge had “covered what [he] was going to say.”
Id. at 749.
The judge then brought the jury into the courtroom, informed the jury
members about the allegations that had been brought to his attention, and reminded
them that they could not consider anything outside of the evidence that had been
presented at trial. The judge then vacated the jury’s earlier verdicts and, after each
juror indicated that he or she could “disregard the map” and “make a new decision
. . . based solely on the evidence presented,” allowed the jury to recommence
deliberations. Id. at 752. Thereafter, the jury again found Aguirre guilty of both
crimes. The district judge sentenced Aguirre to twenty-four months of
imprisonment.
II. DISCUSSION
On appeal, Aguirre argues that the trial judge committed reversible error
when he denied his motion for a mistrial based upon the jurors’ consideration of
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extrinsic evidence. Specifically, Aguirre contends that, by failing to inquire as to
the exact nature of the extrinsic evidence and what role this evidence played in the
jury’s deliberation, the district judge failed to determine whether or not the curative
instructions that he gave to the jury were sufficient to overcome the prejudicial
impact of the extrinsic evidence.
We review a district judge’s denial of a motion for mistrial for an abuse of
discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). The
government has the burden of establishing a defendant’s guilt “solely on the basis
of evidence produced in the courtroom and under circumstances assuring the
accused all the safeguards of a fair trial.” Farese v. United States, 428 F.2d 178,
179 (5th Cir. 1970). This theory “‘goes to the fundamental integrity of all that is
embraced in the constitutional concept of trial by jury.’” United States v. Rowe,
906 F.2d 654, 656 (11th Cir. 1990) (citation omitted). Jurors, in giving effect to
such inferences as may reasonably be drawn from the evidence, properly may
“apply their common knowledge, observations and experience in the affairs of
life.” United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985). Jurors,
however, “have no right to investigate or acquire information relating to the case
outside of that which is presented to them in the course of the trial in accordance
with established trial procedure.” Farese, 428 F.2d at 179. Nevertheless, “‘due
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process does not require a new trial every time a juror has been placed in a
potentially compromising situation.’” Rowe, 906 F.2d at 656 (citation omitted).
Once a defendant establishes that the jury had contact with extrinsic
material, prejudice is presumed. United States v. Caporale, 806 F.2d 1487, 1503
(11th Cir. 1986); but see Rowe, 906 F.2d at 656 (stating that prejudice is not
presumed). Once the presumption is established, the burden shifts to the
government to establish that the consideration of extrinsic evidence was harmless.
United States v. Pessefall, 27 F.3d 511, 515 (11th Cir. 1994). Factors that the
district judge should consider in determining whether the presumption was
rebutted include “‘the nature of the extrinsic information, the manner in which the
information reached the jury, and the strength of the government’s case.’” Id.
(citation omitted). Ultimately, “‘the jury’s consideration of extrinsic material
requires a new trial if the evidence poses a reasonable possibility of prejudice to
the defendant.’” Id. at 516. (citation omitted). The district judge’s determination
of whether the defendant was prejudiced is a factual one that we review for an
abuse of the district judge’s “‘large discretion.’” Rowe, 906 F.2d at 657 (citation
omitted).
The district judge did not abuse his discretion in determining that any
presumption of prejudice arising from the jury’s consideration of extrinsic
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evidence had been rebutted. Given the charges that Aguirre faced, possession of a
firearm by an illegal alien and possession of a firearm by a felon, the only issue to
be resolved by the jury regarding his guilt was whether the gun recovered from the
scene was the object that the investigator had observed Aguirre throw to the
ground. Although the district judge did not determine the exact nature of the map
with which the jury came into contact, the only map that would have been relevant
to the issue of Aguirre’s guilt would have been a map of the area that the
investigator identified as being in Aguirre’s course of travel and the location where
he observed Aguirre throw an object. A map of this area, however, would have
constituted cumulative evidence because an aerial photograph of this location was
introduced into evidence. Accordingly, the map did not pose a reasonable
possibility of prejudice to Aguirre. See Pessefall, 27 F.3d at 516.
Significantly, the district judge mitigated any prejudice that may have
resulted from the jury’s exposure to the map by vacating Aguirre’s conviction,
reminding the jurors that they could not consider anything outside of the evidence
that had been presented at trial, and allowing the jury to recommence its
deliberation, only after each juror agreed that he or she could disregard the map
and reach a new decision based solely on the evidence presented at trial. Finally,
the government’s case against Aguirre was strong, given the investigator’s
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testimony that (1) a gun was recovered from the location where he observed
Aguirre throw an object, and (2) he did not observe anyone other than Aguirre in
this location. See Pessefall, 27 F.3d at 515 (stating that the strength of the
government’s case is a factor that should be considered in determining whether the
presumption of prejudice was rebutted). Because (1) the extrinsic evidence with
which the jury had contact was cumulative, (2) the district judge’s curative
instruction was sufficient to mitigate any potential prejudice that might have
resulted, and (3) the government’s case against Aguirre was strong, the district
judge did not abuse his discretion by denying Aguirre’s motion for a mistrial based
on juror misconduct for considering extrinsic evidence.
III. Conclusion
In this appeal, Aguirre argues that the trial judge committed reversible error
by failing to grant his motion for a mistrial because the jury considered extrinsic
evidence. As we have explained, the extrinsic evidence was cumulative and any
potential prejudice that might have resulted was remedied by the judge’s vacating
the former verdicts and having the jury deliberate the verdicts again with curative
instructions. Accordingly, Aguirre’s convictions are AFFIRMED.
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