United States v. Berto Ramos-Torres ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-2929
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Berto Ramos-Torres, *
*
Defendant-Appellant. *
____________
No. 98-2930
___________
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Fausto Miranda-Mendez, *
*
Defendant-Appellant. *
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Submitted: March 12, 1999
Filed: July 28, 1999
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Before FAGG, LAY, and WOLLMAN,1 Circuit Judges.
___________
LAY, Circuit Judge.
Berto Ramos-Torres (“Torres”) and Fausto Miranda-Mendez2 (“Mendez”)
appeal their convictions and sentencing imposed as the result of their participation in
a drug conspiracy based in Anaheim, California. Torres and Mendez were convicted
of conspiracy to distribute and possession with intent to distribute cocaine in violation
of 21 U.S.C. § 846; the use of a facility in interstate commerce in aid of drug trafficking
in violation of 18 U.S.C. §§ 1952(a) and 2; and the use of a telephone to facilitate drug
trafficking in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Mendez was also
convicted of attempted possession with intent to distribute cocaine in violation of 21
U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2; and distribution of cocaine in violation
of 21 U.S.C. § 841(a)(1). The district court sentenced Torres to 135 months
imprisonment. Mendez was sentenced to 238 months imprisonment and was required
to pay a $2,000 special assessment. This appeal followed.3 We affirm the conviction
of Ramos-Torres; we vacate the conviction of Miranda-Mendez and grant a new trial.
1
The Honorable Roger L. Wollman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 24, 1999.
2
There appears to be some discrepancy regarding the proper sequence of Fausto
Miranda-Mendez’s name. It is referred to in various trial and appellate documents as
“Mendez-Miranda,” but on the appellate docket it is “Miranda-Mendez.” We shall
maintain the use of the name Miranda-Mendez while acknowledging the variations in
the name.
3
Additional defendants were also charged in the indictment and were co-
defendants at trial. Only Torres’ and Mendez’s appeal will be addressed by this court.
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Discussion
A. The Allen Charge
During the third day of jury deliberations, a juror’s husband called to notify the
district court that there was an impending death in the family and to request that the
juror be allowed to leave to go to the hospital. (Trial Tr. 3/26/98 at 3-4.)4 As the result
of the family emergency, the district court decided to recess the jury deliberations. In
granting the recess, the district court stated:
Members of the jury, I just told Ms. Clayton a message that I received
about her and her family, and it is an emergency problem that she is going
to have to deal with; and I want to make sure that she gets a chance to
deal with that. . . . And so I am going to excuse her at this time . . . [and]
all of you. I am going to suggest that you all take off this afternoon and
come back on Monday at nine o’clock.
***
I hate to impose on you any more, to have you come back on Monday.
Obviously there is another reason why I think this might be helpful, and
I want everybody on the jury to have a chance to think about what they
are doing and think about their obligations and think about how this will
come out -- and I don’t want to put pressure on anyone by my comments,
nor do I intend to -- but I want to make sure that each of you has a chance
to think about it, have a calm and, hopefully, restful weekend, and then
come back on Monday.
4
On the same day, the district court was notified by one of the court security
officers that one of the jurors had started acting in an “agitated way” and wanted to
“absent herself from the rest of the jury, [and] not eat lunch with them.” (Trial Tr.
3/26/98 at 2, 5.) The district court was informed that the lone juror had locked herself
in the bathroom and did not want to be with the remaining jurors. The district court
instructed the officer to remain with the eleven jurors during their lunch.
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***
I know it is a problem, and I don’t like to do it; but, with Ms. Clayton’s
problem, this seemed like a good way of solving that problem and
possibly maybe sweeping the other problem right along with it; and I hope
that happens. Obviously there are all kinds of things that we can do, there
are some things we can do, if the second problem -- the unmentioned
problem -- continues; and I don’t want to have to do those, either. So we
will leave it at that, and you all think about it. Have a good weekend.
(Trial Tr. 3/26/98 at 11-14.) After addressing the jury, the district court recessed the
deliberations until the following Monday. It later extended the recess until Tuesday.
Torres and Mendez moved for a mistrial based upon the district court’s
comments to the jury and, in the alternative, asked for a curative instruction. The
district court denied their motions for mistral and held their motion for a curative
instruction in abeyance. (Mot. Tr. 3/30/98 at 12.)
Torres and Mendez contend that their due process rights were violated as the
result of a coercive “dynamite” or Allen charge given to the jury by the district court.
They argue that not only was the district court’s instruction faulty, but that its
premature intervention in the jury’s deliberations was inherently coercive and requires
reversal. They also argue that it was improper for the district court to assume the need
for guidance and peremptory advice because the instruction was given without the jury
communicating a problem to the court about being deadlocked or even frustrated. We
find the district court’s comments were not coercive and do not require reversal.
This circuit has consistently held that a charge to a jury is not inherently coercive
and has established a four-part test to determine whether the charge was impermissibly
coercive. In order to determine whether such a charge was impermissibly coercive, a
reviewing court must consider: (1) the content of the instruction; (2) the length of the
jury’s deliberations following the remarks; (3) the total length of the jury’s
deliberations; and (4) any indicia in the record of coercion or pressure upon the jury.
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See United States v. Johnson, 114 F.3d 808, 814-15 (8th Cir. 1997); see also United
States v. Thomas, 946 F.2d 73, 76 (8th Cir. 1991); United States v. Cortez, 935 F.2d
135, 141-42 (8th Cir. 1991).
We find that the comments given by the district court were not inherently or
impermissibly coercive. The court’s comments simply focused on the personal
interactions of the jury with each other and the developing situation of a serious illness
within the family of one of the jurors. The district court’s comments specifically
mentioned that it did not intend to put pressure on any of them as the result of the
comments. (Trial Tr. 3/26/98 at 13.)
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B. Jury Instruction 60
After the first day of deliberations, the jury requested additional copies of the
instructions given to it by the district court for each member of the jury. The district
court thereafter distributed four additional sets of instructions to the jury. In doing so,
an instruction (“Instruction 60”) not previously given to the jury was inadvertently
included. Instruction 60 related to a forfeiture count against Mendez which had
previously been dismissed.
Both Torres and Mendez argue that the district court erred in not granting a
mistrial as the result of the prejudicial effect of the unintentional inclusion of the
instruction on forfeiture. The instruction’s prejudice relates to the first few sentences
which read: “Members of the jury, you have reached a verdict that defendant Fausto
Mendez-Miranda is guilty of the distribution of cocaine as charged in the superseding
indictment.”5 (Mendez Reply Br. at A2) (emphasis added).
5
The remainder of the instruction provided:
You now have one more task to perform. I must ask you to render a
special verdict concerning property the United States has alleged is
subject to forfeiture by defendant Fausto Mendez-Miranda to the United
States. Forfeiture means the defendant loses any ownership or interest he
has or claims to have in the property, as a part of the penalty for engaging
in criminal activity. You need not concern yourself with any other
person’s interest in the property. I will take care of any such claims.
Your only concern is with defendant’s interest in the property.
The United States alleges that certain properties should be forfeited
because they were derived from proceeds of the defendant’s drug offense
or were used or intended to be used by the defendant to facilitate the
commission of the drug offense.
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After the jury was given the new set of instructions, including the one on
forfeiture, the jury sent a question regarding the newly included instruction to the
district court. This question stated: “We are confused about instruction # 60. We
aren’t sure if we need a form on this or if we are to make some decisions concerning
this. Can you clarify instruction # 60?” (Clerk’s Records at 59.) However, before the
district court could respond with a curative instruction, the jury reached verdicts
concerning the defendants.
Torres and Mendez contend that they are entitled to a new trial because extrinsic
material affected the verdict. They argue that because the instruction was given to the
Count 24 provides that:
As a result of [defendant’s conviction for distribution of cocaine as
charged in the indictment] Fausto Mendez-Miranda shall forfeit to the
United States . . . all property constituting or derived from any proceeds
the said defendant obtained directly or indirectly as a result of the said
violations, and any and all property used or intended to be used in any
manner or part to commit and to facilitate the commission of the
violations alleged [in the indictment].
You must determine what property, if any, is subject to forfeiture.
Property is subject to forfeiture if the United States has proved, by a
preponderance of the evidence either that:
One, the property constituted or was derived from any proceeds the
defendant obtained, directly or indirectly, as a result of the offense of
which he has been found guilty, or
Two, the property was used or was intended to be used, in any
manner or part, to commit or to facilitate the commission of an offense of
which the defendant has been found guilty. . . .
(Mendez Reply Br. at A2.)
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jury by the court, the jury must have accorded it significant weight in their deliberations
and subsequent verdicts. They also argue that the instruction implied that the judge
thought Torres’ and Mendez’s guilt was a forgone conclusion.
The government responds that because the instruction only referred to Mendez,
Torres had no basis from which to contest its publication to the jury. The government
also argues that the inadvertent tendering of the instruction to the jury was not
reversible error because the instruction was not read to the jury, nor was it provided in
the original set of instructions. Finally, it argues that even if the offering of Instruction
60 constituted an error, it was harmless because of the overwhelming evidence of guilt.
We find that with respect to Torres, the publication of Instruction 60 to the jury
was harmless error. Any error which occurred as a result of such publication did not
substantially affect Torres’ rights because the instruction only made mention of
Mendez’s guilt. Because the instruction made no reference to Torres and no findings
had to be made by the jury in relation to Torres, his rights were not affected.
However, with respect to Mendez, we find that such error rose to the level of
“structural” error rendering the trial fundamentally unfair and requiring reversal. See
Beets v. Iowa Dep’t of Corrections Services, 164 F.3d 1131, 1136 (8th Cir. 1999);
Rush v. Smith, 56 F.3d 918, 927 (8th Cir. 1995); Starr v. Lockhart, 23 F.3d 1280, 1291
(8th Cir. 1994) (holding that certain structural errors can never be harmless); see also
Chapman v. California, 386 U.S. 18, 23-24 (1967) (stating that some errors undermine
rights so basic to a fair trial that they can never be treated as harmless error). Structural
errors “call into question the very accuracy and reliability of the trial process and thus
are not amenable to harmless error analysis, but require automatic reversal.” McGurk
v. Stenberg, 163 F.3d 470, 474 (8th Cir. 1998) (citing Arizona v. Fulminante, 499 U.S.
279, 309-10 (1991)). “[T]hese [structural] errors deprive defendants of ‘basic
protections’ without which ‘a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence . . . and no criminal punishment may be
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regarded as fundamentally fair.’” Neder v. United States, ___ U.S. ____, 119 S. Ct.
1827, 1833 (1999) (citing Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
The instruction implied that Mendez was guilty. Furthermore, there was no
curative instruction. As a result, we find that the inadvertent proffer of the instruction
constituted structural error requiring the reversal and new trial as to Mendez’s criminal
conviction.6
C. Torres -- Reduction for Minor Role
The district court found Torres to be an average participant in the conspiracy and
attributed to him an amount equivalent to four kilograms of cocaine as the result of his
participation. Torres contends that the district court erred in denying him a two-level
sentencing reduction for a minor role under United States Sentencing Guidelines
(“U.S.S.G.”) § 3E1.1(b) (1998) because there was insufficient evidence to prove that
he participated in all of the actions the court attributed to him.
A two-level reduction is authorized where a defendant’s role is minor but not
minimal. See U.S.S.G. § 3B1.2(b). The propriety of a downward adjustment is
determined by comparing the acts of each participant in relation to the relevant conduct
for which the participant is held accountable and by measuring each participant’s
individual acts and relative culpability against the elements of the offense. See United
States v. Goebel, 898 F.2d 675, 677 (8th Cir. 1990). “[A] court will ordinarily affirm
the trial court’s decision unless it is not supported by substantial evidence, it evolves
from an erroneous conception of the applicable law, or we are left with a firm
6
Mendez has also raised a sentencing issue relating to his claim that he was
entitled to a downward departure for his acceptance of responsibility. In addition, he
asserts substantive error in the district court’s failure to exclude the testimony of certain
witnesses. In view of our reversal of Mendez’s conviction and the grant of a new trial,
it is not necessary to pass on these arguments.
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conviction that a mistake has been made after having considered the entire record.”
United States v. Wallraff, 705 F.2d 980, 987 (8th Cir. 1983) (citation omitted). Torres
contends that his only role in the conspiracy was helping to arrange the shipment of a
package to California and tracking down another package. He contends that he was
never involved in the sale of the drugs. He maintains that he must be compared to
others in the conspiracy and that in doing so the district court should have determined
that he had a substantially smaller role than his co-conspirators.
Torres was not sentenced upon the entire conspiracy but only upon his own
actions. See United States v. McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996); see also
United States v. Belitz, 141 F.3d 815, 818-819 (8th Cir. 1998). The district court found
that he was an average participant in the conspiracy and held him responsible only for
the two packages of drug proceeds with which he had contact. The two packages
contained $97,820 in drug proceeds which represented four kilograms of cocaine.7
Torres was only held accountable for the amount of cocaine in these packages and not
the total amount of drugs transported or sold by the conspiracy. Accordingly, a further
reduction for his role in the offense is not warranted, and we find no error in the district
court’s refusal to do so.
Conclusion
The judgment of the district court is affirmed as to Berto Ramos-Torres; the
judgment of conviction as to Fausto Miranda-Mendez is vacated and a new trial is
ordered.
7
This amount was ascertained by determining average street cost per kilogram
($24,000) of cocaine and dividing the total amount of cash by that per kilogram average
amount resulting in the estimated four kilogram amount.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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