United States v. Vartanian ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10581
Plaintiff-Appellee,
v.  D.C. No.
CR-01-05069-OWW
HAGOP VARTANIAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
October 18, 2006—San Francisco, California
Filed February 28, 2007
Before: J. Clifford Wallace, Andrew J. Kleinfeld, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
2273
UNITED STATES v. VARTANIAN 2275
COUNSEL
Dennis P. Riordan, Esq. and Donald M. Horgan, Esq., Rior-
dan & Horgan, San Francisco, California, for the defendant-
appellant.
Mark E. Cullers, Assistant United States Attorney, Fresno,
California, for the plaintiff-appellee.
2276 UNITED STATES v. VARTANIAN
OPINION
BYBEE, Circuit Judge:
Hagop Vartanian (“Vartanian”) appeals his jury convictions
for aiding and abetting the filing of a false tax return, in viola-
tion of 18 U.S.C. § 2 and 26 U.S.C. § 7206(1), and two counts
of aiding and abetting the making of false statements on a
loan application, in violation of 18 U.S.C. § 2 and 18 U.S.C.
§ 1014. On appeal, Vartanian asserts that the district court
abused its discretion when it dismissed a juror from service.1
We have jurisdiction under 28 U.S.C. § 1291, and we affirm
Vartanian’s conviction.
I
In November 2001, a grand jury returned an indictment
charging Vartanian with understating the income from his
auto sales business, Pacific Sales & Leasing, on his 1994 and
1995 tax returns; with deliberately omitting income from his
business, Muscles-N-Motion; and with deliberately omitting
income from his illegal bookmaking business. The indictment
also charged Vartanian with knowingly making false state-
ments on his 1993 and 1994 tax return for the purpose of
obtaining a car loan.
Vartanian’s trial began in February 2003, and the jury
began deliberations in March 2003. On the second day of
deliberations, the trial judge received a note from the jury
foreperson stating: “There is one juror that has been seen on
different occasions speaking to the defendant’s family. Juror’s
name is Kathy. Three or four people have seen her and two
saw her this morning chatting with them outside the court-
room.” After discussing the note with counsel for both sides,
the judge decided to interview the juror (“Juror 7”) to deter-
1
We have addressed Vartanian’s claims regarding jury instructions and
exclusion of witness testimony in an unpublished disposition.
UNITED STATES v. VARTANIAN 2277
mine the extent and nature of her contacts with individuals
associated with the case.
When questioned about her contacts, Juror 7 stated that she
had only exchanged “pleasantries” with people associated
with the case, telling them “hi,” “it’s a nice day,” or “[t]hings
will be okay.” Juror 7 assured the judge she had done nothing
more than say hello and did not intend to express her feelings
about the case. At that time, Juror 7 also maintained that she
made the “[t]hings will be okay” comment to a woman she
described merely as dark-haired and present in the courtroom.
After the interview with Juror 7, the judge commented that
“[he did]n’t have any reason to disbelieve [Juror 7],” but
wanted to talk to the foreperson who had raised the initial
complaint. Soon after making that comment, however, the
judge learned that Juror 7 had spoken to another court official
after her interview and informed the official that the woman
with dark brown hair was actually Vartanian’s sister—a fact
she had not stated in her interview.
The trial judge then interviewed the remaining 11 jurors
and a person associated with Vartanian whom Juror 7 had
approached. In these interviews, the jurors collectively related
several instances in which they observed Juror 7’s improper
contacts: Juror 7 once made a point of taking the elevator
alone with people associated with Vartanian’s case; Juror 7
deliberately approached Vartanian’s family and individuals
associated with his case and talked with them for “maybe a
minute”; while in Starbucks, Juror 7 initiated conversation
with defense counsel, Vartanian, and a few other people asso-
ciated with Vartanian, though she explained to another juror
that she was “just saying hi”; and Juror 7 walked out of the
courthouse talking with a blond woman who was present dur-
ing trial proceedings. One juror added that, while seated at a
lunch table, Juror 7 started talking about “Vartanian’s eyes
and how kind he looked and everything.”
2278 UNITED STATES v. VARTANIAN
Between interviews, defense counsel confirmed that he,
Vartanian, and other people associated with Vartanian were
ordering coffee, when Juror 7, who was with another juror
from the case, called out to them to: “Buy us a coffee too.”
The judge also interviewed Vartanian’s brother’s fiancé, a
blond woman with whom Juror 7 had been observed speak-
ing, to determine the extent of her contact with Juror 7.
In his interview with each juror, the judge carefully verified
that the situation had not affected the juror’s ability to remain
fair and impartial. Although the trial judge attempted to focus
the juror interviews on Juror 7’s contact with individuals
associated with the case, one breach did occur. During an
interview, one juror blurted out that “[Juror 7] said that [Var-
tanian] was not guilty and nobody can change—” Later, when
asked whether Juror 7’s conduct “influenced [her] or affected
[her] in any way,” the same juror also remarked: “Well, I
think the jury is going to be hung up.”
Following these interviews, the trial judge expressed his
concern with Juror 7’s behavior. He noted that, at the outset
of the case, the jurors were shown a video tape entitled “Cal-
led to Serve,” which instructed them “not [to] mingle or talk
with anyone associated with the case, including the lawyers,
the parties, and the witnesses” and not to discuss the case with
“other jurors until . . . inside the jury deliberation room.” The
judge emphasized the fact that when confronted with the alle-
gations, Juror 7 mentioned only one contact and assured the
court it was just “casual.” However, interviews with the other
jurors revealed that Juror 7 had much more extensive contact
than she had admitted. The trial judge found that Juror 7 had
“not been forthcoming and entirely truthful with the Court”
and had “entirely minimized [her contacts].” In addition to the
evidence gained through juror interviews, the judge also noted
that Juror 7 exhibited other “bizarre” behavior, including
“bombard[ing] . . . the parties and the Court with notes asking
questions” at inopportune times and bringing chocolates to the
court reporter and insisting that she take them.
UNITED STATES v. VARTANIAN 2279
The trial judge found that Juror 7 “expressed solicitude”
and “gave assurances” to family members and persons associ-
ated with the defendant. He further found that Juror 7 “was
not forthcoming, did not disclose all her contacts, and we had
to learn about all these contacts from other jurors.” Based on
his observation of Juror 7’s “demeanor” and “explanations,”
the judge found that “the juror [had] been deceitful and
untruthful with the Court” and was “untrustworthy.” The trial
judge concluded that he was “unwilling to trust [Juror 7] to
be a fair and impartial juror” and dismissed her from service.
After two more days of deliberation, the jury found Var-
tanian guilty on all counts. The court pronounced judgment
and sentenced Vartanian to fifteen months in prison and
ordered payment of a $10,000 fine. Vartanian filed a timely
appeal to this court.
II
[1] Federal Rule of Criminal Procedure 23(b) provides that
“[a]fter the jury has retired to deliberate, the court may permit
a jury of 11 persons to return a verdict, even without a stipula-
tion by the parties, if the court finds good cause to excuse a
juror.” FED. R. CRIM. P. 23(b). “Good cause” encompasses a
variety of problems that may arise with respect to the jury,
including sickness, family emergency, or misconduct. See,
e.g., United States v. Beard, 161 F.3d 1190, 1192-93 (9th Cir.
1998). Because “the district court [is] in the best position to
evaluate the jury’s ability to deliberate,” we generally defer to
the district court’s good cause determinations. Id. at 1194
(internal quotation marks omitted); see also United States v.
Ross, 886 F.2d 264, 266 (9th Cir. 1989). We review a district
court’s dismissal of a juror during deliberations for abuse of
discretion and the district court’s factual findings relating to
the issue of juror misconduct for clear error. See United States
v. Shryock, 342 F.3d 948, 973-74 (9th Cir. 2003); Beard, 161
F.3d at 1193.
2280 UNITED STATES v. VARTANIAN
Vartanian asserts that the district court should not have dis-
missed Juror 7 because so long as there is “any reasonable
possibility that the impetus for a juror’s dismissal stems from
the juror’s views on the merits of the case,” the trial judge
must either “send the jury back to continue deliberating or
declare a mistrial.” United States v. Symington, 195 F.3d
1080, 1087 (9th Cir. 1999). For reasons we explain below,
Symington does not govern our disposition here.
[2] In Symington, the jury complained that one of its mem-
bers refused to participate in the deliberative process. Id. at
1083. The evidence that developed, however, suggested that
the jurors’ “frustrations with [the reluctant juror] may have
derived more from their disagreement with her on the merits
of the case.” Id. at 1084. The issue was what evidentiary stan-
dard a district court should use when evaluating the likelihood
“that a juror’s views on the merits underlies the request for
her removal.” Id. at 1086. We expressed concern that any
inquiry “ ‘would invite trial judges to second-guess and influ-
ence the work of the jury,’ ” and that the district court might
expose jury deliberations to public scrutiny, thereby interfer-
ing with “the integrity of the deliberative process.” Id. (quot-
ing United States v. Thomas, 116 F.3d 606, 620 (2d Cir.
1997)). In order to preserve these “twin imperatives,” we held
that if there was “any reasonable possibility” that the jurors’
complaints stem from the juror’s views on the merits then the
trial judge has “only two options: send the jury back to con-
tinue deliberating or declare a mistrial.” Id. at 1087. At the
same time, we emphasized in Symington that “[c]ases subject
to this rule . . . are infrequent” and that “[i]n general, ques-
tions of juror bias or competence focus on ‘some event, or . . .
relationship between a juror and party, that is both easily
identifiable and subject to investigation and findings without
intrusion into the deliberative process.’ ” Id. at n.6 (quoting
Thomas, 116 F.3d at 621).
[3] The impetus for the jurors’ complaints about Juror 7
was not her willingness to deliberate, but her misconduct out-
UNITED STATES v. VARTANIAN 2281
side of the jury deliberation room. The note that the foreper-
son sent to the trial judge raised issues of improper contacts
suggesting juror bias. The district court carefully interviewed
all of the jurors and found that Juror 7, in violation of the
court’s instructions to the jury,2 had spoken to members of the
defendant’s family, defense counsel, and apparently even to
the defendant himself. Moreover, the trial judge also found
that when questioned, the juror had not been forthcoming
about all of her contacts. Some of the jurors’ complaints were
corroborated by defense counsel and the defendant’s brother’s
fiancé. Under these circumstances, the record amply supports
the district court’s findings that Juror 7 was “untruthful with
the Court” and “untrustworthy.” It was thus appropriate and
well within the district court’s discretion to dismiss Juror 7.
See Shryock, 342 F.3d at 973-74; Beard, 161 F.3d at 1193.
[4] The only fact that arguably brings this case within
Symington is that one of the jurors, while being questioned by
the district court, volunteered that “[Juror 7] said that [Var-
tanian] was not guilty and nobody can change—” and “I think
the jury is going to be hung up.” These statements, which
were not solicited by the trial court, should not have been vol-
unteered and could not be a basis for removing the juror. Nev-
ertheless, we think that the district court properly ignored
them. Juror 7 was dismissed because of her misconduct and
not because of her views on the merits. This case thus evokes
none of the concerns we cited in Symington. The judge had no
occasion to—and did not—inquire into the jurors’ motiva-
tions for reporting the misconduct or the course of the jury’s
deliberations. Juror 7’s conduct under investigation was
2
Vartanian argues that Juror 7’s contacts were not contrary to any
instructions given by the court. The record, however, reflects that the trial
judge admonished the jury on numerous occasions not to discuss the case
with individuals associated with the parties or anyone else and showed the
jurors a video tape that instructed them “not [to] mingle or talk with any-
one associated with the case, including the lawyers, the parties, and the
witnesses” and not to discuss the case with “other jurors until . . . inside
the jury deliberation room.”
2282 UNITED STATES v. VARTANIAN
behavior outside of the jury deliberation room. Since the
“questions of juror bias or competence” raised here “focus on
‘some event, or . . . relationship between a juror and party,
that is both easily identifiable and subject to investigation and
findings without intrusion into the deliberative process,’ ” the
“rule we announce[d in Symington] is not triggered.” Syming-
ton, 195 F.3d at 1087 n.6 (quoting Thomas, 116 F.3d at 621).
III
[5] For the foregoing reasons, the district court did not
abuse its discretion when it excused Juror 7 under Rule 23(b).
We affirm Vartanian’s conviction.
AFFIRMED.