*1 1097 Monaco, 793, (3d Cir.1994), F.3d 800 prohibition Amendment’s of cruel un- and Third Circuit concluded that the 1993 punishment. usual Because we vacate De- § commentary amended U.S.S.G. 3B1.3 fendant’s sentence and remand for resen- applicability guideline restricts the tencing, we need not and do not reach that positions: to business argument. application notes to the 1988 ver- Judgment AFFIRMED; of conviction entirely § of not sion U.S.S.G. 3B1.3 are sentence VACATED and REMANDED clear, appears but their overall tenor for resentencing. encompass relationship employer employee, parent and and not child.
Any doubt resolved reference to notes, application which define position public or private trust “professional
involving or managerial Harry SASSOUNIAN, M. Petitioner- ... discretion.” No mention is Appellant, positions all of nonbusiness of trust.
(Footnote omitted.) v. appeals The other courts of that have ROE, Lancaster; Earnest Warden of At- reached different conclusions than we have torney General of State of Califor- either construed the older version of the nia, Respondents-Appellees. note, see, e.g., application United v. States No. 98-56747. (8th Cir.1994) Johns, 740, 744 15 F.3d (abuse of trust as stepfather role United Appeals, States Court of spiritual permits § advisor adjust 3B1.3 Ninth Circuit. ment), Ledesma, United States (11th Cir.1992) (use paren F.2d Argued and Submitted Oct. tal daughter influence involve in crime Filed Oct. qualifies position §as 3B1.3 abuse of As Amended Denial of Rehearing trust), application § or the 3B1.3 to a Dec. 2000.* position familial challenged by was not see, Ellis, appellant, e.g., United States (1st Cir.1991) (abuse n. 9
of position stepfather), of trust as Morin,
United States 935 F.2d (abuse Cir.1991) position of trust as uncle).
Because the role “mother” ais nonbusiness, purely position, familial 3B1.3 does authorize an offense level
adjustment an abuse of trust in the mother-daughter relationship, without
more.3 We therefore hold that the trial adjustment
court erred in making case. EIGHTH AMENDMENT Finally, argues Defendant that her 87- month sentence violates the Eighth * case, procedural posture Judge Judge In the we of this Thomas and Wardlaw voted need not and do not decide whether abuse deny rehearing Judge trusting relationship of a familial support can grant Silverman has voted to it. upward departure under some other sec- Sentencing tion of the Guidelines. *3 vagueness We evidence.
statute, and insufficient 28 U.S.C. under jurisdiction part. and reverse part affirm and we
I. Jurisdiction held recently Court Supreme An- by the enacted provision appellate Penalty Death and Effective
titerrorism
at 28
(“AEDPA”)
Act of
*4
amended,
all
governs
as
§
U.S.C.
effective
AEDPA’s
initiated after
appeals
McDaniel,
U.S.
Slack
See
date.
L.Ed.2d
473, 120 S.Ct.
2253(c)(1)
that
provides
(2000). Section
Sevilla, San
Sevilla, Cleary &
M.
Charles
of
certificate
judge issues a
...a
“unless
California,
petitioner-appel-
for
Diego,
taken
not be
appeal may
an
appealability,
lant.
a district
from”
appeals
a court of
Glassman,
of the Attor-
Office
F.
David
Such
case.
a habeas
final order
court’s
California,
for
General,
Diego,
San
ney
“only
applicant
if
may issue
certificate
respondents-appellees.
showing of
a substantial
has made
id.
right,”
constitutional
of a
denial
spe-
which
2253(c)(2),
“indicate
must
§
and
id.
showing”
satisfy the
or issues
cific issue
2253(c)(3).
§
rule, the
pre-Slack
Following our
pro
pre-AEDPA
applied
court
district
SILVERMAN, and
THOMAS,
Before:
proba
of
“certificate
and issued
cedures
WARDLAW,
Judges.
Circuit
the is
specify
cause,”
does
ble
WARDLAW; Partial
by
new
by Judge
required
Opinion
as
appeal
for
sues
by Judge
Roe,
Dissent
Partial
2253(c)(3).
and
Fuller
Concurrence
See
section
Cir.1999)
(9th
(holding
SILVERMAN.
699, 702
F.3d
applies
procedure
appellate
pre-AEDPA
WARDLAW,
Judge:
Circuit
court
district
filed
petitions
habeas
of
the denial
appeals
Harry Sassounian
AEDPA).
of
date
effective
before
corpus.
habeas
writ of
petition for
Witek,
situation,
and Schell
Slack
murdering
of
Sassounian
jury convicted
(en banc),
Cir.2000)
F.3d 1017
of
Arikan,
General
the Consul
Kemal
notice
construe
we should
indicate
jury also
Turkey.
of
Republic
of
certificate
for a
request
as a
appeal
of
killing be-
of
circumstance
special
true the
of
certificate
and
issue
appealability,
and
origin,
national
nationality or
cause of
satisfy
issues
as to the
appealability
prison
to life
sentenced
Sassounian
Slack, 529
See
for issuance.
the standard
parole.
of
possibility
without
(“As AED-
at-,
at 1603
spe-
and the
his conviction
both
challenges
should
Appeals
the Court
applied,
PA
six
presenting
finding,
circumstance
cial
an
appeal as
the notice
treated
conviction
that his
argues
He
claims.
appealabili-
a [certificate
for
application
prosecutorial
for
overturned
be
should
(citing
n. 4
at 1021
Schell,
ty].”);
and
perjury;
witness
misconduct
appeal
a notice
construing
Slack
finding should
appeala-
a certificate
application
misconduct, an
because
overturned
(“A
P.
R.App.
Fed.
instruction,
see also
bility);
abetting
aiding
improper
HOI
request addressed to the court of appeals
The California Court of Appeal de-
may be
considered
a circuit judge or
scribed the crime as follows:2
judges,
prescribes.
as the court
If no
[A]s Arikan stopped at
signal
light
express request
filed,
certifícate is
at Comstock
Wilshire,
men,
two
appeal
notice of
constitutes a request
each armed with a large caliber hand-
addressed to the judges of the court of
gun, approached
(which
the vehicle
appeals.”).1
equipped with California “Consular
AEDPA authorizes a certificate of
Corps”
plates),
one from the
appealability “if
applicant
has made a
driver’s side and the other from the
substantial
showing
the denial
aof
con
side,
passenger’s
and fired a number of
stitutional right.”
28 U.S.C.
2253. A
rounds Arikan
very
from
close range.
showing”
“substantial
“includes showing
Arikan died within
very
few minutes
jurists
reasonable
could debate wheth
from multiple gunshot wounds to the
...
er
should have been re
head and chest. Following the shooting
solved in a different manner or that the
gunmen
two
ran south on Comstock,
presented
issues
were ‘adequate to de
deposited
weapons
their
under a hedge
”
*5
serve encouragement
proceed
further.’
and then made their escape in a grey
Slack,
at-,
529 U.S.
II. Background (California number on the plate This case TER) concerns the highly publicized license No. 534 which information killing (herein of Kemal Arikan “Arikan”), given police. the A grey Chevro- the Consul General of Republic the of Tur- let bearing that license number was reg- key at Angeles, Los on January istered to the defendant. He was ar- in the Westwood area of Los Angeles. rested at about p.m. that afternoon 1. Our express Circuit preference Rules that it put question "better the to a court district court requests consideration of has read the briefs argu and heard oral ment than certificates of appealability: toss it back to a "The Court district judge may who forgotten Appeals what will not the act on a fuss is request for a certifi- States, about.” 639, Williams United 150 F.3d cate of appealability if the district court has 1998). Cir. not first request.” ruled on the Ninth Circuit 22-2(a). Rule Accordingly, may remand 2. We presume must correct the factual find- appropriate in other factual circumstances ings of the California state courts. See 28 Here, however, not before us. when an inter- 2254(d) (1995); U.S.C. Mata, Sumner v. vening Supreme law, changed case Court the 539, 546-47, 66 L.Ed.2d agree we with the Seventh (1981). Circuit's statement near the witness, also who was A fourth driving home his Pasadena near murder, time at intersection vehicle. gun at man shoot saw and shots heard Cal.App.3d People v. position. crouched slightly from the car (Cal.App.1986) 880, 883-84 Cal.Rptr. did but identify Sassounian could not She omitted). prosecution The (footnotes side as on driver’s man identify the murder. capital with Sassounian charged Saliba, Sassounian’s. friend Krikor shooting also witnessed Case fifth witness Prosecution’s A. Saliba, identified sixth and a and identified Testimony Eyewitness 1. “very who as someone trial at the testimo- introduced prosecution see- remember man I resembles much who described eyewitnesses of several ny the corner.” on ing Sassouni- identified and scene the murder and Investigation side Police passenger on gunman an as the Evidence Physical car. offered also stopped prosecution that while witness testified One investigation. police during Wilshire, she obtained and at Comstock light pro- the information up on followed Police southwest standing men two saw gun- who followed by a witness intersection, vided corners southeast run down them watched men crossing the other but each staring at hedge, in a guns their street, discard She contacted light. with street a license car grey in a away drive shooting heard she after police police searched TER. The plate of lineup and ain and identified Sassounian pistol caliber a .45 and retrieved hedge *6 vest a blue identified She also trial. at They matched pistol. a 9 millimeter brother Sassounian’s from recovered regis- grey a to Chevrolet plate by Sassounian. clothing worn in at residence his to Sassounian tered he while that testified witness Another Kri- observed police also The Pasadena. day he that Comstock driving on was other as the identified Saliba, was who kor running men two and saw shots six heard home, failed but at Sassounian’s gunman, a men wore One Comstock. down arrested police The him. apprehend wit- lineup, this aAt jacket or vest. blue driving the finding him after Sassounian Sassounian he “believed” that stated ness his home. near Chevrolet grey Sassou- identified He later man. that was searched Sassouni- police evening, That trial At at trial. lineup and photo in a nian addi- clothing and retrieved an’s home initial hesitant his explained the witness spoke with police also guns. tional high awas that there identification, stating brother, gave who them Sassounian’s man Sassounian that probability testified later officer police A vest. blue saw. he that told him brother Sassounian’s a red feelings at stopped “bad his brother witness he and A third both trial, At Wil- driving people.” on the Turkish while toward at Comstock light statement. making two and saw denied shots heard brother she when shire some- put of them away. One men run residue gunshot performed police initial anAt waistband. his thing into on residue and found Sassounian tests on identify Sassounian could lineup, hand, finding she consistent his left which vest gui- blue Hydroxy saw gun. she fired a recently but when having only broth- indicating from Sassounian’s negative, were police recovered tests noline holding the men been one could have er, remembered she Sassounian finger- no man Sassounian, Experts object. had been metal lineup, However, tests guns. car. She on prints side passenger of both fingerprints produced line- photo Chevrolet Sassounian later identified Saliba. trial. up
H03 expert firearms testified that bul- questioned whether Busch was a trusty, found in lets body Arikan’s were consistent whether he would have had access to a with those test-fired high-profile from the recovered murder suspect like Sassouni- an, guns, that the .45 caliber and whether pistol was fired Sassounian would have from the to a passenger confessed stranger. side of the car and Charles Laughlin and two other that the 9 inmates pistol millimeter testified from the driv- Busch fabricated er’s side. Sassounian’s Over the confession and defense’s objection, he was a notorious liar. expert expressed Laughlin ex- opinion that the plained that gave he Busch newspaper assassins had tactic, used “stall man” clippings the names of two person Armenian one stands in front of the acquaintances help him fabricate the victim’s car to slow down and allow for story. The defense also introduced evi- more accurate shooting. dence that Busch’s version the assassi- nation was incorrect on several Sassounian’s matters. Confession Busch incorrectly identified Tejerían and prosecution introduced the testimo- Yeghoian, the names that Laughlin testi- ny Jeffrey Busch, jailhouse informant, fied had provided, as the names of that Sassounian confessed the crime. partners. Sassounian’s Busch also incor- Busch testified that as an “trusty,” inmate rectly stated that the assassination took jail, within the he talked to place in Century City, near the former who told Busch that he committed the location of the Turkish consulate. The crime. Busch testified that he was selling speculated defense that Busch got the ad- candy and cigarettes to other inmates dress from an out-of-date book. when a man identified himself as Sassouni- Sassounian did not testify. an and asked for help with his case. Ac- cording Busch, Sassounian explained C. Jury Deliberations and Verdict that he worked for the Justice Commandos guilt phase, jury deliberated for the Armenian Genocide, a terrorist or- days. fifteen On January 1984, the ganization, and that he and two partners last day deliberations, sent a killed Arikan in a political assassination to *7 note to the court: “get revenge on what the people Turkish If the defendant was not the actual killer did to people.” inmate, Another Dan- gun, the but was involved in the ny Gruytch, testified that he saw Busch crime, can he be considered to have and Sassounian talking but that when he killed the victim as stated in the special heard they that were discussing a murder circumstance of nationality and country he decided did not want to get involved. of origin in that he was a Turkish Na- tional? B. The Defense’s Case Also if we agree can verdict, on a but Sassounian’s counsel argued that po- the agree cannot on any of the special cir- had lice the wrong man. Three witnesses cumstances, what would our procedure testified that they could not identify Sas- be? sounian as the gunman. fourth, Judith Answering the second question, the court Jones, stated positively that Sassounian stated that if the jury could not agree on was not the man who had been on the the special circumstances, they should re- southeast corner of Comstock and Wil- turn a verdict addressing only the issue of shire. Three alibi witnesses who knew guilt. To address question, the first the Sassounian testified that they had seen prosecutor then suggested that the court him in Pasadena around the time of the give an additional aiding abetting in- murder. struction. The judge did give the re- Sassounian’s counsel vigorously also at- quested Instead, instruction. he stated on tacked Busch’s credibility. The defense the record that he was unsure what the meant, Juror her note what asked then When He first question. by the jury meant deliber- was jury that testified room Rankins jury jury returned circum- special nationality At p.m. about ating 2:40 its deliberations resume She instruction. jury re- the related day, the same stance on the p.m. 3:50 verdict. its testified: turned ... that of first in the instruction it stated guilty And found you that true the reason other were no and also there if murder degree of kill the because did of murder the defendant why say can special but did not origin, of his nationali-
nationality or national because Consul Turkish special cir- the other most on go for a verdict you should reach that ty, wait, CaLPenal see lying Well, I had reason.... reasonable cumstance'— charge that 190.2(a)(16> on that based Code —or beginning doubt the com- gun a used defendant kept that And I testimony. Busch’s on crime, § 12022.5. see id. mission while, but until a quite for doubt verdict, sort ju- up, brought of the was receipt Following statement penal- to return my excused mind. changed were rors day or Late that January phase on ty as to question court’s response to the sent next, Dylane Rankins early the to, Juror referring she was statement what read: judge which to the note a testified: further Rankins my change Honor, late it too is Your that mentioned jurors Well, one circumstances? on one vote to the made phone there was I 4th, was was ill. I Wednesday, On concerning threat- Consulate Turkish my because clearly to think unable there be why would and said ening call other from the pressure and the illness At call. reasons, assuming the other over, except is my sickness Now jurors. just I guess I really sick I was time I clearer. I think can coughing. for the So was home. goof to kind wanted based Also an error. made I have feel know, said, I you ISo pressure. lot of brought out evidence some on why, reason any other think couldn’t evidence wasn’t deliberations in our But was doubt.... though there even in court. out brought my sickness now that realizing, after Rankins, the note from receiving the After clearer, I over, I think can juror. Several each interviewed court believe don’t deliberations, during jurors stated I this is what And in court. out brought to the call made juror mentioned on, that statement. my decision taking threatening Consulate Turkish court, three by the interviewed When victim. assassination credit *8 and Walk- Castillo jurors Kennelly, other — had trial, prosecution During call phone of discussion er—recalled that evidence introduce attempted to did remainder but the during deliberations call on phone received reporter UPI remembered she Kennelly said not. Juror who 1982, an individual from January phone of introduction on behalf the assassination credit for took publicity having to do call the Ar- Commandos the Justice of Ken- that Juror may It be assassination. at argument After Genocide. menian argument the sidebar nelly overheard had excluded judge sidebar, the trial inadmissible.3 call ruled which the tes- reporter never UPI testimony and the Sassounian, Cal.Rptr. at People See tified. counsel, Mr. Ger- defense script and includes lengthy that question is no There 3. long does asking away, "How walking Depart- agos, place inside bar took side contentious proffered the Superior Angeles go Ms. Rubin on?" of the Los this No. ment reporter, who Attorney Doyle, Rubin's a UPI testimony of Mr. following District Court Doyle.” James min- People call fifteen approximately testify that “the statement was to tran- pages of trial occupies ten colloquy
HQ5
(Johnson, J.,
concurring in part and The Court Appeal
appointed
referee,
dissenting
part).
Castillo,
in
Juror
the who held an evidentiary hearing and found
foreman,
remembered
someone had Busch’s trial
testimony credible. The
phone
mentioned the
the jury-
after
Court of Appeal affirmed.
Justice John-
asked
question
about being unable
again
son
dissented
questioned
wheth-
to agree
a special
on
circumstance. Ac-
er the referee “adequately performed the
cording
Castillo,
to Juror
“we felt that
he
mission
was assigned.”
Supreme
since it wasn’t
court,
mentioned in
it Court affirmed in a published opinion, stat-
wasn’t something we could elaborate on.”4
ing
if
even Busch’s trial testimony was
credible,
the error was
The trial
harmless
judge,
be-
without explanation, de-
cause he was vigorously impeached by
clared “there was no
Sas-
jury misconduct.” At
sounian’s counsel and overwhelming
evi-
conclusion of the penalty phase, the
dence supported conviction. See
In re
returned
verdict
life without pos-
Sassounian, 9
Cal.4th
sibility
parole.5
Cal.Rptr.2d
446, 454,
(Cal.1995).
The Justice Commandos."
In view of Juror
jury
which the
stance,
true the
circum-
Kennelly's testimony,
the
speaks
record
loud
required
the law
that
penalty
the
and clear as to the source of the extrinsic
either death or life without possibility
pa-
evidence.
190.2(a).
See
role.
id.
regarding
allegation
third
habeas
Sassounian’s
misconduct.
cutorial
prose-
prosecutorial
prosecutorial
miscon-
misconduct is
the
granted
will be
misconduct “so infected
told the
that the defense coun-
only
duct
when the
cutor
to make the
trial with unfairness as
Saliba’s sister iden-
up
the
sel made
evidence.
pro-
a denial
due
resulting conviction
tified his car and stated
the license
Wainwright,
TER,
U.S.
plate.
cess.” Darden
proper
not the
plate, 534
was
2464,
HQ7
swer”).
judge
“Yeghoian,”
also instructed the
The
individuals who had no con-
argument
and
are
lawyers’ comments
the crime
nection to
but who had been
Furthermore,
evidence.
id.
not
Laughlin.
of
acquaintances
Cf.
points
to a few
in
misconduct
isolated
declaration,
In a June 1991
Busch re-
Whitley,
v.
F.2d
the trial.
Hall
935
Cf.
testimony.
canted all of his
He stated that
(9th Cir.1991) (“Put
164,
proper
in
165-66
had
story
help
he
fabricated the
with
from
context,
were
mo-
the comments
isolated
a fellow inmate and that he had never had
trial.”).
day
in a three
We cannot
ments
with
any contact
He
Sassounian.
stated
deprived
say
prosecutorial misconduct
police
that a
detective filled him in on the
a fair
trial.
Sassounian
case,
gave
details of the
him
also
car,
money,
promised
him
bought
a
to
Perjury
2. Witness
help
1991,
him with
In
his ease.
October
argues
also
that his
however, Busch recanted his recantation
overturned
conviction should be
because
and stated in another declaration that he
story
Busch fabricated
entire
his
truthfully at
had testified
trial.
Sassounian,
meeting
and that
The government contends that this court
prosecution knew about at
least some
must
findings
defer
the factual
by
government
Perjury
Busch’s lies.
“if
Appeal.
trial
is a
requires
witness
new
there
California Court of
On habeas
probability
review,
reasonable
presume
[without
we must
correct “a deter-
proceedings
the result
evidence]
hearing
mination after a
on the merits of a
been
would have
different.” Franklin
issue,
by
factual
made
State court
(N.D.Cal.
Duncan,
1435,
F.Supp.
884
1456
competent jurisdiction in a
proceeding
1995),
75,
on
adopted
appeal, 70
applicant
which the
for the writ and the
Cir.1995)
(9th
(quoting United States
agent
State or an officer or
thereof were
Young, 17 F.3d
1203-04
Cir.
2254(d) (1995).
parties.”
28 U.S.C.
1994)).
Sassounian’s
should
Appeal,
California
adopting
Court
granted
perjury
if
“undermines confidence
report,
referee’s
that Busch was
in the outcome of the trial.” United States
credible in his trial
testimony.
court
667, 678,
Bagley,
S.Ct.
government
also found that the
witnesses
(1985).
756 F.2d
findings
People
the Court
v.
Cal.
conduct.”
226
ferred to
decide, however,
Thus,
need not
Appeal.
only
We
issue
Rptr.
900.
before
2254(d) requires deference
whether section
harmless;
us is whether the error
factual find-
state court makes
when one
is,
had a
the extrinsic information
whether
affirms the
state court
ings
higher
and a
injurious
or influ
“substantial and
effect
findings.
In-
relying on the
case without
determining
jury’s
in
ence
verdict.”
stead,
Su-
agree with
California
we
Abrahamson,
623,
619,
Brecht
preme
is not a reasonable
that there
Court
(1993);
[T]he under petitioner’s guilt on the first tablished merits, turning Before degree charge. murder The deletion of may must what be we determine evidence testimony, a more Busch’s or effective jury’s evaluating considered consid testimony, impeachment would of this improper eration of the evidence. Federal Multiple changed nothing. eyewit- have 606(b) provides Rule of that: Evidence petitioner. positively identified nesses juror any may testify not as to [A] eyewitness watched the shoot- Another occurring during matter or statement away in a guns ers hide their drive jury’s or the course deliberations plate. exhibiting petitioner’s car anything upon to the effect that or guns The recovered fired bullets juror’s or any other mind emotions Testing that killed the victim. revealed juror or influencing the to assent petitioner’s hand. gunshot residue dissent from the verdict or indictment or short, testimony, without Busch’s there processes concerning juror’s mental probability not a reasonable therewith, except in connection that a different. result would been juror may testify question on the wheth- Special B. Circumstance Issues prejudicial information er extraneous brought jury’s improperly Jury Misconduct attention.... Sassounian contends A long precedent distinguishes line of be- jury’s consideration of facts not juror testimony tween about the consider- invalidated the circumstance find evidence, may ation extrinsic which be ing. question Juror is mixed misconduct fact, court, by reviewing of law and reviewed de novo. See considered Marshall, Rodriguez v. F.3d subjective about the testimony effect Cir.1997). particular juror, evidence on the See, may e.g., Rodriguez, not. 125 F.3d at juror’s communication of extrin Sullivan, 744; Dickson v. F.2d implicates sic facts Confrontation (9th Cir.1988) (“the question preju- Wood, Clause. See F.3d Jeffries objective, subjec- dice is an rather than (9th Cir.1997) (en banc). tive, one”); Bagnariol, United States v. juror in effect becomes an unsworn wit (“Ju- (9th Cir.1981) 884-85 ness, subject to not confrontation or cross may testify regarding rors extraneous government examination. See id. The prejudicial improper or out- information concedes, and the Ap California Court of They may ques- side influences. found, that peal “the reference to [the] process tioned the deliberative phone call introduced into the delibera subjective tions matter which was into of extraneous informa- not admitted effects
H09
tion,
deliberations;
(5) any
such information be consid
other
nor can
matters
courts.”);
by
appellate
the trial or
ered
may
bear on the issue of the
Spain,
v.
464
121 n.
Rushen
U.S.
reasonable
ex-
possibility whether the
(1983);
453,
“There is no line not test i.e., determining call, ferring whether a defendant has to the same the call prejudice ju suffered from an instance of embassy claiming the Turkish credit for ror Rodriguez, misconduct.” 125 F.3d at Rather, the Arikan assassination. Juror (9th Cir.1997). However, place “we referring telephone Castillo was to another great weight the nature the extrane a map related to drawn informant information ous that has been introduced Busch, which ac- contained references to (citing Id. Jeffries, into deliberations.” against tions taken Turkish government 1490). at We have identified the discussions, properties. During map following inquiry: factors as relevant jurors spoke “the incidents that (1) actually whether the material was there, somebody were written down (2) so, received, how; length and if up responsibility had called and claimed (3) jury; of time it was available to the for those.” the extent to which the discussed Moreover, (4) jurors, at least two it; and considered whether the mate- they Kennelly, Rankins and testified that rial was introduced before verdict was reached, point and if into thought so what call had been received alone information pivotal timing of two, possibly only Although evidence. it was conclusion compels the hearing about remembered three, jurors *13 preced- deliberations Lengthy information, number harmless. “[t]he improper the relatively quick not does a the misconduct the misconduct by ing affected jurors strongly for calculus misconduct prejudice the the heavily following weigh verdict Marino, influenced improperly F.2d 812 juror’s single See prejudice. even suggest unpreju of an defendant jury the re- deprives vote when (granting at 505 v. Lawson verdict.” diced, unanimous had juror, who shortly after verdict turned Cir.1995); (9th see 608, 613 F.3d Borg, 60 im- considered days, thirty out held (“If one only 408 at Dickson, F.2d 849 compel- evidence). more But even proper in improperly or unduly biased was juror was dis- the evidence fact that ling is the his sixth fluenced, deprived was Dickson Rankins’ to Juror response cussed panel.”); impartial to an right amendment instruction jury on based question (9th 970, 973 Calderon, F.3d 151 v. Dyer reason” reasonable “most about guaran Cir.1998) Amendment (“The Sixth call phone “evi- improper The killing. by im a verdict defendants criminal tees rea- “reasonable supplied the thus dence” or bias The jurors. indifferent partial, needed convict. Rankins Juror son” would juror single even or prejudice improper evi of the very nature The trial.”); Unit to a fair right Dyer’s violate prejudiced it (9th suggests 1109 Gonzalez, F.3d dence also 214 v. ed States argues government F.2d 895 The Borg, Cir.2000); v. Sassounian. Tinsley relief, the Cir.1990) (“Even only one if granting (9th in other cases unlike 523-24 directly im prejudiced, or not unduly biased information did juror extrinsic right 114 Jeffries, his constitutional is denied See defendant defendant. plicate (internal quotations jury.”) jury impartial where granted (petition 1484 F.3d 395 California, omitted); Harrington v. criminal prior defendant’s learned L.Ed.2d (9th 60 F.3d record); Borg, v. Lawson must re that “we (1969) (recognizing im jury Cir.1995) where granted (petition single imagine can if we verse violent); was defendant told properly up been have might mind whose (9th 1180, 1191 5 F.3d Blodgett, Jeffries Bosby’s [inadmis Cooper’s because jury where Cir.1993) granted (petition would otherwise and who confessions sible] pri- committed had defendant learned unconvinced”); in doubt remained Dickson, F.2d robbery); armed F.2d Delaney, States United that de told where (petition granted Cir.1984) (“If juror is single (8th crime); a similar committed fendant is as influenced, verdict improperly F.2d 499 Cir. Vasquez, Marino were.”). if all unfair juror did 1987) where (petition granted jury’s discus of the timing fire could she whether testing experiment was critical. evidence improper of the sion review position). particular ain gun deliberations, 1:55 at days of fifteen After however, cases, re government’s what jury asked January p.m. on considered evi improperly veals that a verdict but on agree if it could do should damaging. more even was here dence special cir any of agree not could bad acts prior Unlike back to sent jury was cumstances. cases, the evi in those prejudicial during the 2:40. It jury room an ele supplied call phone dence returned hour, the verdict before next being deliberated. issue very of the ment jury discussed p.m., that at 3:50 related Sas- directly phone Turkish Con reason as the phone call in the at issue motive, which was sounian’s considering even Without was killed. sul was convicted. for which special circumstance phone statement Rankins’ Juror at 744 Rodriguez, Cf holding out stop her caused . call is what juror misconduct (stating that reversible finding, the circumstance special on the
HU
usually
“directly to a
relates
material as-
status,
kan’s official
by
revealed
pect
added)
(emphasis
case”
(citing plates reading only
Corps,”
“Consul
does
885)).
Bagnariol, 665 F.2d at
ju-
Three
not specifically implicate Sassounian. By
rors testified
contrast,
to the same
call—this
the phone call
only
demon-
phone call
only
could
have been the one
strates that
the killers targeted Arikan
discussed during the lengthy and
because
conten-
of his nationality, but also directly
tious side bar described in
connects
footnote 3. In
Sassounian to the crime and the
proffer,
her
prosecutor
the state
repre-
motivation
corrob-
*14
sented that
reporter
orating
the UPI
received a
Busch’s testimony that Sassounian
phone call which
killed Arikan
named the
while working
Justice Com-
for the Justice
mandos for the Armenian
'Commandos for the
Genocide as the
Armenian Genocide.
organization
Because the
taking
phone
provided
credit for the
significant
crime.
Thus,
probative
the call specifically pointed
evidence of a nationality-based
to a na-
Sassounian,
motive
tionality-based
it
motive.
reasonably
This reference
could
profound
had a
was all the more significant
effect on the jury.
because it
corroborated Busch’s testimony that Sas-
Finally, the judge never had an opportu-
sounian committed the
for the
crime
Jus-
nity to diminish the prejudicial effect of
Commandos,
tice
group
the same
men-
the extraneous information. Because he
in
Thus,
tioned
the call.
phone
the
call not
did not know that
jury
the
found out about
only powerfully suggested that the killers
phone
the
call until
verdict,
after the
the
acted based on the nationality of the vic-
jury was never told not to consider it.
tim, but also rehabilitated Busch’s thor- We therefore conclude
jury
miscon-
oughly impeached testimony about Sassou-
duct had a “substantial
injurious
and
ef-
nian’s confession
a political
killing.
fect” on the special circumstance finding.
It cannot be said that the other evidence We believe that the dissent misapplies the
amassed at trial was so overwhelming that
injurious
“substantial and
effect” test
jury
would have reached the same
presented
facts
here. Rejecting the
result
if
even
it had not considered the
standard established in Chapman v. Cali-
extraneous material. Although
jury fornia,
386 U.S.
did hear other evidence related
spe-
(1967),
to the
L.Ed.2d 705
the Supreme Court in
circumstance,
cial
all of it was either
Brecht imported
cir-
the harmless-error stan-
cumstantial or challenged
trial.
dard
States,
Kotteakos v. United
prosecution presented
Sassounian’s broth-
S.Ct.
limousine with
plates.
after pondering all
happened
with-
However,
stand,
on the
out stripping
brother denied
the erroneous action from
making
whole,
the statement
his
feelings
about
the judgment was not
Turkey.
addition,
substantially
vague
swayed by
error,
expres-
it is
ill
impossible
sions of will are not
nearly
probative
conclude that substantial
as a
rights
definite
were not
responsibili-
statement
taking
affected.
inquiry
ty
cannot
for the
killing
merely
on behalf of an
whether there
anti-
ivas
enough
result,
Turkish
to suppoH the
organization.
apart
terrorist
Because
from
phase
the defense
error.
It
vigorously
cross-examined
is
affected
rather,
so,
Busch
even
whether
the error
introduced
itself
evidence that he was
had
liar,
so,
substantial
If
notorious
influence.
or if
Busch’s credibility was
one is left
grave
in
suspect.
doubt, the
As
conviction
Justice
explained,
Johnson
cannot stand.
Busch’s “testimonial
thread” was “tat-
tered.” People v.
Kotteakos,
226 Cal.
misconduct that has not resulted in the
granting petition. of the habeas Motion, Order Denying Sep- Petitioner’s *16 (citations omitted). tember 1998 at 33 In determining whether the momentane- ous mention of the likely had a PERSON; Earl Juneau; OLD Carol injurious substantial and effect or influ- Whitehead; Bill Elk; Herman Red ence in determining jury’s 'verdict Williams; Ronald Margaret Camp- Brecht, required by bell; essential view it Main; Meyers; Andrea Donald in the context of entirety Joseph the case. MacDonald; Padilla, Jeannine says that majority the evidence Plaintiffs-Appellants, con- cerning circumstance was less than overwhelming. respect, With all due COONEY, Mike Secretary of State for suggest I there was mountain Montana; Racicot, State of Marc mostly undisputed evidence that Arikan Governor Montana, for the State of was killed nationality: because Defendants-Appellees. (cid:127) previously Petitioner expressed his ha- tred for the Turkish people. No. 98-36157.
(cid:127) Arikan was a Turkish dip- national and United Appeals, States Court of lomat. Ninth Circuit. (cid:127) Arikan drove a car bearing the distinc- tive Corps” “Consul plate. Argued Aug. and Submitted (cid:127) The pre-positioned two assailants Filed Oct. themselves either of an side inter-
section in Arikan’s usual course of travel and awaited his arrival. (cid:127) When Arikan’s car arrived at the in-
tersection, he immediately was am- men,
bushed two assassination style. (cid:127) There was no personal evidence of a
relationship between peti- Arikan and