United States v. Decoud

America, process application new United States of through a Valley Plaintiff-Appellee, Lucas new EIR. Homeowners Marin, County Cal.App.3d Ass’n. v. v. (1991), Cal.Rptr. analogous Israel, Defendant-Appellant. Audra Valley, here. In Lucas the situation County of Marin court stated did 04-50374, 04-50318, Nos. 04-50478. to consider an orthodox Jewish need Appeals, States United Court of expansion group’s hopes future when Ninth Circuit. plans proposed were not expansion ap- proval group’s application in the and would Argued Feb. and Submitted 2006. subject to a application process. future 161-62, Aug. Filed Cal.Rptr. Id. at 427. Similar- ly, agreed Nanak Guru here has a ca-

pacity seventy-five people the build- plans temple, it convert into require

future construction would another process.

application

IV. Conclusion

We AFFIRM the district court’s order summary

granting judgment for Guru Na- enjoining County

nak immediately approve grant Guru Nanak’s CUP

application.

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee,

v. DECOUD, Jr.,

Sedrick Roshun a/k/a

Rab; Merced; Dee Shaun and Shaun

Vance, Defendant-Appellant. America, States

Plaintiff-Appellee, Trice, Defendant-Appellant.

Kendra Oliver, CA, Angeles,

Vincent J. Los ar- gued appellant the cause for Decoud. Ivens, Glendale, CA, argued Gail appellant for Trice. cause Rome, CA, Nuys, Richard D. Van ar- gued appellant the cause for Israel. Missakian, Craig H. Assistant United Attorney, argued States the cause for the government. him on the With consolidat- Wong Yang, ed were brief Debra Attorney for the District of States Central California, O’Brien, P. Thomas Assistant Attorney, Nancy Kar- United States don, Attorney. Assistant United States FLETCHER, FERGUSON, Before B. CALLAHAN, Judges. Circuit CALLAHAN, Judge. Circuit Drug Enforce- This case involves (“DEA”) investiga- Administration’s ment prosecution drug-traffick- of a tion and Riverside, California. ing organization Decoud, Trice, Kendra and Audra Sedrick (collectively, appellants”) chal- “the for lenge their convictions and sentences in a to distribute co- engaging conspiracy case, and, being in Decoud’s caine base They possession of a firearm. a felon from the ranging of issues raise number of its confi- government’s non-disclosure identity informant’s to the district dition Page, dential the affidavit named Trice subject as a principal investigation. court’s dismissal of a based on her of the inability discharge purpose wiretap claimed her duties in The stated was light religious primarily investigate alleged views. an con- of her We hold spiracy to manufacture govern under the various standards that and distribute con- review, our fail to trolled substances. The affidavit appellants show detailed probable wiretap, relying the district court committed reversible er- cause concedes, however, government during pre-wire- ror. The discoveries made tap investigation appropriate stating “Special that a limited remand is give opportunity Agents court the of the DEA have the district received infor- supervised-release concerning organized correct the term that it mation cocaine part trafficking and imposed as of Israel’s sentence. Ac- distribution network in- cluding! Page yet affirm the ... cordingly, judgments ] we en- and others as un- court from known[ ] tered the district and remand Confidential Sources[.]” Israel’s sentence for further The affidavit proceedings. explained also that the wire-

tap necessary because normal investi- gative procedures had been exhausted and I investigation already methods of had Conspiracy A. by been used or were unavailable to law investigation beginning April The in enforcement. appellants’ partic- uncovered the 28, 2001, On November the district court ipation enterprise that manufactured interception authorized the initial of wire base, and distributed cocaine otherwise re- communications, which began following ferred to “crack” cocaine. organiza- as The day. 31, 2001, On December based on the by Page,

tion was run Cleo Israel’s then- affidavit, same the district court authorized boyfriend. interceptions continued of Page’s cellular telephone through mid-January

Israel met with 2002. The drug customers at her wiretap uncovered evidence of gave conspir- home and them cocaine base ex- acy: mainly intercepted phone change money. for calls with Page Israel allowed to Page. drugs store at her home and introduced sister, Trice, Page to her as someone who C.Automobile and Search Firearm on, drugs. could also sell From then Trice Possession in selling drugs Page involved for and

would deliver buyers cocaine base call, In a December 2001 intercepted prearranged locations. Decoud a Page was also stated that Decoud was “cooking” organization, selling member and cocaine base. The DEA then contacted manufacturing Page. cocaine base for Highway California Patrol to ask

help stopping automobile, Decoud’s with Wiretap B. expectation that a stop would be made long legitimate, as as there was a indepen- Six or seven months into its investiga- doing dent basis for so. tion, government approached the dis- wiretap trict court with a application day, highway and Later that a patrol officer supportive a DEA Special traveling declaration a pulled narcotics canine (“case Agent agent”), requesting authority speeding having Decoud over for and im- intercept properly calls to and from a cellular stopped, tinted windows. Once telephone primarily Page. used In ad- provided Decoud the officer with his driv- Department distributing more than 50 running After distribute er’s license. grams of cocaine base. Decoud alone was check on Decoud’s li- Vehicles Motor charged being count two with a felon in cense, that the license the officer learned possession of a firearm. on account of his fail- suspended had been The appear prior ure to violation. government The also filed a motion un- impounded officer arrested Decoud and 404(b) der Federal Rule of Evidence pursuant to the California the automobile felony prior admit narcotics convictions for Code, peace authorizes a Vehicle which appellants.1 government each of the possession officer to take of a vehicle when sought to admit Israel’s 1990 conviction for has been arrested or cited for the driver sale, possession along of cocaine base for driving suspended on a license. Cal. Veh. with her 1997 and 2001 convictions for (West 2001). § 22651(p) Code possession of cocaine base. After Israel argued these convictions were too inventory- The officer conducted an tentatively trial court prejudicial, the ad- automobile’s contents while search of the the two more recent convictions mitted and came present Decoud was still across and excluded the older conviction. cooking pot, tape, duct sandwich-size cash, baggies, telephones, cellular plastic suppress a motion to Decoud filed a locked metal briefcase. When asked through wiretaps, evidence derived briefcase, it Decoud claimed that claiming supporting about the affidavit him belong and that he did not that the DEA had failed to exhaust did showed open investigative techniques, how to it. Decoud further standard includ- know informants, seeking automo- its use of stated that he had borrowed the before wiretap.2 argued Decoud that the affidavit belonged and that the briefcase bile contained material misstatements of the automobile. The officer then owner relating alleged necessity to the omissions the canine over to the vehicle and brought which, if wiretap investigation of the re- presence to the the canine “alerted” dacted, may have resulted denial officer forced it drugs the briefcase. The The district court wiretap application. a open and found inside loaded semi-auto- motion, hearing a and denied the held handgun, large supply matic a of cocaine than concluding that the affidavit “more base, digital and a scale. why the adequately explain[s] government Proceedings D. Pretrial other methods of either did not undertake investigation they or to the extent that did 6, 2002, grand jury a returned On June had, in all likeli- they why or such efforts charging ap- eight-count indictment hood, produce not the evidence for would drug- nine others with various pellants and wiretaps which the were needed.” and firearm-related offenses. After the pleaded guilty, suppress other defendants nine Decoud also filed motion offi- government superseding highway patrol filed a two-count the evidence that the him, including the contents charging appellants indictment with cer seized from holding hearing, the intent of the After conspiring possess briefcase. motive, intent, 404(b) preparation, plan, by confirming prohi- begins opportunity, 1. Rule knowledge, identity, absence of mistake or evidence to bition on the use of character 404(b). conduct, Fed. R. Evid. conforming accident[.]” prove but then states is admissible that evidence of other crimes joined prove some- Trice Decoud’s mo- when the evidence is offered to 2. Both Israel and character, suppress wiretap evidence. thing proof as tion to other than "such issued a written denial of ... testimony the district court tion that the informant’s will motion, explaining that the evidence unspecified ‘exculpatory include informa- ” (1) probable established that there was tion’ and that is insufficient to “[t]his to believe was cause for the officer Decoud requirement meet the threshold of show- tinting on the auto speeding and ing that disclosure would be relevant to at mobile’s windows violated the California least one defense.” (2) Code, performed Vehicle the officer inventory of the

valid search vehicle and Proceedings E. Trial subjective that his motivation to conduct “ Trial September commenced on stop ‘play[s] traffic no role [the] case-in-chief, government 2003. In its ordinary, probable-cause Fourth Amend ” fingerprint called a testify examiner to analysis’ (quoting ment Whren United prints taken from Israel at the States, time 806, 813, U.S. S.Ct. (3) her arrest for the instant (1996)), offense 135 L.Ed.2d 89 Decoud matched a set of prints that had been object standing lacked to the search of obtained from her in connection with a owning the briefcase because he denied it. prior arrest. The examiner did not refer conference, At pretrial status Israel’s to the origin prior prints, which counsel made an oral motion for gov- pertained to Israel’s 1990 narcotics convic- ernment the identity to disclose of its tion that the district court already had (“CS1”). confidential source wiretap The government excluded. The explained that affidavit described performing CS1 as it would redact the reference to the 1990 drug buys controlled with Page and two charge and conviction and link to a already other defendants who had pleaded prior fingerprint conviction on the card. guilty. testify Israel wanted CS1 to as a government specifically did not refer defense witness trial to show that of Israel’s prior convictions and the there was contact no between CS1 and fingerprint card admitted in Although government Israel. did not addition, evidence. In specifical- the court contact, dispute the lack of argued ly excluded the 2002 of fingerprints, set that she should not be limited to eliciting reasoning fingerprint expert’s tes- fact from agent. this the case Recogniz- timony was sufficient to establish that all ing that the lack of contact between CS1 fingerprints belonged to appellant and undisputed, Israel was the court de- Israel. termined that CS1 did not have material testimony, but indicated that it would con- After Israel called a number of wit- any sider authority Israel in provided nesses, testified, but before Israel herself support of her motion. it became clear theory that Israel’s

The following day, user, seller, filed a written case that was she was a not a CS1, motion for claiming, the disclosure of drugs. government renewed its elaboration, without further argument that “testimo- that Israel’s 1990 conviction for ny government’s from the possession confidential of cocaine base for sale should source 404(b), is not material to the defen- be admitted under asserting Rule trial, dant’s provide but will exculpatory “opened that Israel by claiming the door” relating evidence to her innocence of the that she was not a drug seller. After charges.” The court in argument, denied the motion extensive the court excluded all order, explaining minute prior that the motion of Israel’s convictions under Rule 404(b). “only utterly contains an conclusory asser- Q: Maybe you your could tell me what inquired government response,

In is[?] convictions could be used concern whether the under Federal impeachment value their Well, wrestling A: I’ve been with this The court ruled of Evidence 609. Rule I’m ever since it started. to the impeach could Isra- government now, I can’t point sleep night. with the two more recent testimony el’s just very religious I’m per- —I’m 2001) (1997 During her convictions. and son, my and I have own set of val- examination, Israel admitted both direct I ues and believe the Bible. convictions, that was convicted stating she my It what I live Completely. is felony possession narcotics be- twice for just by. life And I to the —I’m using cocaine base. cause she was anything I that point cannot do is 9, 2003, days after seven On October going to leave me in a of un- state trial, La- jury began its deliberations. I I rest. feel that shouldn’t be day, that sent a handwritten ter I that I here. don’t feel should be signed by the by Juror No. 8 and note feel, I judging anyone. And I said clarification of the foreperson requesting well, judge ques- did ask regarding conspiracy jury instructions tion, anyone very if here there “It specifically note read: count. The religious. spo- And I should have in court in order [for there] stated I can’t up judge ken then. another to be conspiracy!,] profits have my And Bible states cer- person. crime, is this by partners shared I and tain facts that have live later, sent a Half an hour true?” I precedence. take So want- those No. 8 note Juror second handwritten ask, maybe I ed to could be excused This note signed by foreperson. you could ask someone else to calls “to playback of recorded requested I can’t do it. judge because description language of defen- clarify Q: really appreciate you being I phone dant Israel’s conversations.” —com- telling this!.] forward and us Immediately responded after the court right thing by You have done notes, 8 sent another to these Juror No. and send- bringing these concerns read: “Dear handwritten note I want to ing the note and so you please allow me Judge!,] Would that, doing first of all. you thank I you privately. should have speak with you are question I think the I sorry I am but maybe said this sooner. during I remembering that asked you Thank go cannot further until I do. like, something do goes voir dire very much in advance.” I have you you can tell have— question The court decided question a few times. asked this parties and counsel but front of the just mean it’s But that doesn’t jurors. of the other presence outside the But do important every time. as that she had been juror explained The any strongly held any you have trial as to struggling throughout or moral be- religious, philosophical, as carry she could out her duties whether keep you prevent liefs that would that, due juror and it had become clear judgment you sitting o[f] from convictions, was unable religious to her she person? ques- Is that the another following- judge any defendant. remembering? you tion are transpired the court exchange between Yes, A: I am. juror: and the Q: today, you thing And as sit here how about the discussions. After you question? acknowledging directive,

would answer the court’s response continued with her and ad- say, yes, A: I I do. would questioning ditional from Israel’s counsel Q: you you Do find that are unable to followed: jurors, deliberate with the other A: scriptures There are that keep com- discuss the evidence and the law? ing my into heart that convicted me. Yes, my A: I do. Because studies in decided[,] And so that is when I rules, the Bible there are certain well, you know, mean, I I came and their standards are different. it my duty. because was civic Q: you having you And so are are — Q: sorry, I’m ... I you. didn’t hear finding it impossible to set those A: I said I came I because felt it was standards in- aside follow the my duty. Holy civic But then the structions if there is a conflict? Ghost convicts me and tells me that A: Yes. I am to come out of the world. And opened up The court then question- way is the that I have been Only to counsel. Israel’s counsel was taught. And that way try is the I in inquiring interested further and fol- every day. feel, live And I don’t lowing dialogue ensued between Israel’s mean, I scripture tells me not to sit juror: counsel and the judgment and there are other Q: you [H]ave shared these with views scriptures that keep coming up in jurors your

the other during delib- my mind that I know is God’sWord. erations? And I have to live what I know is His No, Word. A: I did not. Q: you And any did not discuss of this

Q: I ... today you noticed that wrote any jurors? of the other three of questions. you Have your mentioned feelings or A: No. expressed any your religious feel- Q: you How about when wrote this

ings jurors to the other concerning note? [third] they these defendants or how might A: I well, started to I thought and then judged eyes in the of God or I can talk judge with the I first. whoever? felt, started tell them how I but A: No. then I thought it would be better to

talk judge with the first. Q: you How far did get telling them Q: least, in part, you So have been you how felt? willing to discuss the case with the A: I didn’t tell them. jurors you par- because have ticipated to degree writing Q: You wrote the note and showed it to information; notes asking for more your foreperson though? correct? A: Yes.

A: Actually, Yes. got we started and Q: Did he express any did he ask —or Holy Spirit my convicted heart you any questions about it?

so bad— Yes, A: he did. But I didn’t I answer. court interrupted juror The the in mid- told him that I wanted speak to sentence to instruct her not any- to share judge with the first. ended, very the and that inquiry judge positively counsel’s “she indicated that

When juror hallway out in the making the to wait she was her request asked not to be juror the exited for a few moments. Once excused of any as a result conduct or courtroom, the court stated that the the anything said to her by any that was other be juror should excused because she “told juror.” that she is unable to de- unequivocally

us waiving Without their concerns over the the and unable to follow court’s liberate dismissal, juror’s appellants the consented court then instructions[.]” The solicited to the court’s substitution of an alternate Initially perspectives of counsel. there the juror, jury the was and instructed to “set objection no and Israel’s counsel stat- was disregard past aside and all deliberations that “the court’s conclusion is correct.” ed begin deliberating and anew.” The re- counsel, however, then the Israel’s asked its jury began constituted deliberations court to declare a mistrial because the from returned spe- scratch and unanimous juror only person” was “black on against appellants, finding cial verdicts her jury “grossly and exclusion would guilty conspiracy charge. each on the As given unfair” that all the trial defendants Decoud, jury specifically to Israel and African-American. When the court are any they respectively conspired whether he found that had asked Israel’s counsel had authority argument, his legal support possess grams he than 50 more of cocaine “No.” responded Counsel Decoud noted base. also found guilty The Decoud juror participat- that the to have appeared on the count. firearm jury’s speculated in the and ed deliberation sought to be perhaps that she excused Proceedings F. Post-verdict up felt on” in of “ganged light

because she The moved for ju- appellants judgments the fact that she was “the black acquittal days a new trial. Four ror.” Counsel for Trice shared the same be- motions, “I hearing and told the court speculations fore the scheduled on the gut maybe tran- feeling something have Decoud a motion to examine filed further in there.” spired juror, in which Trice and dismissed joined. based subsequently Israel Decoud appreciated The court the defense’s con- request signed his a declaration rejected suggestions, these find- cern but sister, Trice’s who was a de- juror this [if “that would have told us fense witness at trial. The declaration ... of race was because her level issue] juror approached claimed the sis- intelligence and articulation.” Nonethe- after the couple ter at bank a months less, juror the court had the return to happened trial and what had asked question: an additional there answer “Is also that the case. The declaration stated in the anything jury room terms juror juror sister that had told the anything that was said or done from subjected pressure been to severe jurors you brought the other towards jurors some of while deliberat- today you in here with this concern?” She sister, juror ing. According to the responded “No” and the court dismissed some implied that there have been just cause her from pressure get racial her off the case The being discharge able her duties. acquittal. she a “holdout” for juror’s “replies court commented that address, other form of contact in- II formation to the sister.3 mind, background With this we con- appellants’ sider the contentions the or- hearing, After a the district court denied arose, der in which they starting with the order, In a the court the motions. written challenged pretrial rulings concluding ruling memorialized its on Decoud’s mo- appellants’ objections with the to their sen- juror, tion to further examine the observ- tences. ing juror’s testimony before the court contradicted the declaration’s hear- Wiretap Application A. The say pressured assertion that the felt In order to a wiretap, obtain might and that there have been racial im- government demonstrate, alia, must inter plications pressure. to such The district that normal investigative techniques have court concerning also noted that evidence been tried reasonably appear and failed or pressure brought juror— to bear on a unlikely dangerous, to succeed or to be too whether it the form of written present and must a full complete testimony declaration or live inad- —was statement establishing normal investi missible under Federal Rule of Evidence gative means will not suffice. 18 U.S.C. 606(b). 2518(l)(c), (3)(c); § United States v. McGuire, (9th 1192, Cir. 24, 2004, On June the district court sen- 2002). review the district We court’s find 20-year tenced to a prison Decoud term on necessity in a wiretap application for one, 10-year count a concurrent prison abuse of discretion. United States v. Ca two, term on 10-year count and a term Gomez, nales supervised following release his release Cir.), cert. denied sub Fregoso nom. custody. July from On the dis- States, 543 U.S. 125 S.Ct. trict court sentenced Trice to serve a 10- (2004). 160 L.Ed.2d 185 year prison eight-year term followed supervised term of Septem- release. On appeal, On Israel restates Decoud’s 27, 2004, ber the district court sentenced government claim that the failed to estab 10-year Israel to serve a prison term fol- necessity lish the wiretap. Al 10-year lowed term supervised though Israel challenges agent’s the case release. representations CS1, concerning she does passage reasons, 3. The relevant of the declaration rors and for that and other she felt states: compelled to ask [] to be excused. She 02, 2003, Tuesday, On or implied about December might that there have been some Fargo while I was at the Wells Bank in implications pressure get racial her to off business, Valley banking Moreno to do I the case. She further told me that she was juror]. saw ap- [the She also saw me and acquittal severely holdout for but was proached me and asked me if she knew me pressured by jurors the other and for that because I looked familiar and wondered reason asked to be excused. She also told where she had seen me. I informed [the jurors me that the had up their made minds juror] that I was the sister of Audra Israel beginning from the fact did and Kendra Trice and that I had been in they deliberate when received the case. during juror] Court the trial. [The asked detail, go [She] did not want to into but happened me what had in the case and I suggested attorneys that the defense contact explained to her soliciting [sic]. Without give telephone her. She refused to me her her, any information from she volunteered address, suggested number or but that we deliberating, subject while she was go through process the Court to obtain it. pressure severe ju- from some of the other

1007 Bennett, to States v. 219 any this court reason doubt United F.3d give not (9th Cir.2000). noted, 1122 representations. As the case those affidavit that CS1 would agent’s provided urges Israel that the government’s also to make controlled longer no be available physical surveillance was beneficial prison drug buys because of CSl’s term. “could have been continued.” This view directly the conflicts with affidavit’s state- necessity that the have articulated We “ that particular ment on one occasion dur- that requirement does not 'mandate[] surveillance, Page left his residence the government organize release of (and confronted) directly and drove to law wiretap jailed informants before will be ” agents conducting enforcement who were Staves, v. 383 authorized!].]’ States the surveillance. The district court rea- (9th Cir.2004) (quoting F.3d Ca sonably Page’s knowledge that found Gomez, 1226), at cert. de nales 358 F.3d the surveillance necessi- increased the (2005). nied, 1169, 125 543 U.S. S.Ct. ty for law to wiretap Page’s enforcement “any further that previ have reasoned We telephones. Accordingly, the court district from ous success the use confidential finding did not its discretion in abuse persuasive informants is even less de [in Gomez, necessity wiretap. for the Canales context termining necessity] in the of an 358 F.3d at 1225. investigation conspiracy.” criminal Ca Gomez, Thus, F.3d at 1226. nales B. Automobile Search argument present not Israel’s does a valid Decoud asks us to the district reverse challenge wiretap. basis court’s denial of his motion to suppress present has failed to similarly any re fruits the automobile search. We allegations factual to substantiate her con- sup view the district court’s denial of his clusory pen registers statement pression novo. v. motion de United States likely to succeed in fur- were sufficient Crawford, 372 F.3d Cir. thering government’s investigation. 2004) (en banc). Decoud has Whether contrast, the agent’s 54-page In case affi- standing to assert a Fourth Amendment pen registers only noted that davit because novo, under although claim is reviewed de supplied identifying regarding information lying fact are for clear findings of reviewed telephone, particular calls made from a Davis, v. error. United States would establish technique neither the iden- (9th Cir.1991). 752, 756 person nor tity of the called reveal con- argues highway necessity tents of conversations. The Decoud inventory light patrol is search that led wiretap evaluated officer’s merely discovery not of the firearm inside government’s need collect evidence, “develop an briefcase violated the Fourth Amendment some but to effective not in the because the search was conducted against conspira- case those involved Brone, policy standardized cy.” United States v. 792 F.2d accordance with (9th Cir.1986) J.); ruse for rum (Kennedy, merely general and was Al McGwire, incriminating maging to find evidence. see also 1198-99 one though property in which (defining “effective case” as “evidence of briefcase doubt”). interest, a Fourth Amendment guilt beyond a have reasonable There- gave up fore, appreciate if Decoud that he pen even Israel had shown fails productive any expectation privacy would the briefcase registers have been ownership. degree, by unequivocally disclaiming would have showing some Nordling, See United extinguished wiretap. the need for States (9th Cir.1986) (stating 1469-70 that a joined state that Decoud Trice’s severance relinquishes any expectation defendant of motion. We must therefore conclude that privacy disclaiming after interest the Decoud has challenge waived his to the Cella, property); see also States v. district ruling. court’s (9th Cir.1977) 1266, 1283 (explain 568 F.2d Assuming arguendo that he filed a sev ing that denying ownership property joined motion, erance motion or Trice’s questioned when constitutes abandonment Decoud has nevertheless waived this issue result, property). reject of that As a we because he failed to renew a severance protestations his against the search of the request at the government’s close of the States, briefcase. v. See Abel United 362 case-in-chief or any during at time trial. 217, 241, 683, U.S. 4 80 S.Ct. L.Ed.2d 668 We have held that a defendant waives his (1960) (holding that one who has voluntari right appeal the denial of his severance ly property abandoned cannot subsequent motion if he does not renew the motion at seizure). ly complain about its search and the close of evidence. United States v. Sherwood, (9th Cir.1996) 98 F.3d 409 C. Non-severance (as amended). The reason for requiring a We now turn to argument Decoud’s defendant to renew his severance motion is the district court in trying along erred him trial “enable[ ] the court to assess more with Trice and year Israel. Almost a be- accurately joinder whether a prejudicial is government fore the superseding filed the at a time when fully the evidence is devel indictment, Trice brought a motion to sev- oped.” Plache, United States v. 913 F.2d er, challenging joinder of co-defen- (9th 1375, 1379 Cir.1990). original dants indictment. At an October hearing, 2002 the district court defendant, A however, will not be denied Trice’s It motion. is this ruling found to have waived his challenge if he challenges appeal. Decoud can show diligently either that he pursued severance or that renewing the motion A district court’s denial of a mo would have unnecessary been an formality. tion to sever is reviewed for an abuse of Sherwood, 98 F.3d at 409. Decoud seeks Pitner, discretion. United v. States 307 to come within exception by this claiming (9th Cir.2002). 1181 “The test the severance motion accompa by for abuse of discretion the district court nied prejudicial introduction of evi joint is ‘whether a trial was so manifestly dence that need not have been again raised prejudicial require as to judge the trial stage the trial proceedings. He exercise his way, discretion but one ” cites evidence that both Trice and Israel ordering a separate trial.’ United States Page interacted with and were involved in Patterson, (9th v. Cir. the drug conspiracy. Decoud concludes 1987) Abushi, (quoting United States v. likely transferred “the clear (9th 1289, 1296 Cir.1982)). guilt of Trice and Israel” to Decoud. Initially, we must determine wheth er Decoud has waived challenge to the theory Decoud’s of prejudice is district court’s non-severance determina misconceived. The fact that mere a defen tion. Decoud preserved claims that he dant has a acquittal better chance of if issue for appeal by filing his own sever separately tried require does not sever ance motion. But the district Jenkins, court’s dock ance. See United States et does not Cir.1986) indicate that Decoud filed a F.2d (holding motion, severance parties that, and the do not showing absent a preju- manifest an abuse of dice, co-conspirator is not entitled disclosure is discretion when or by merely suggesting demon identity, severance “an or the contents [ informer’s ] advantage sepa strating comparative communication, of his is help- relevant and trials). consequence The inevitable rate accused, ful to the of an defense trial is that the will become any joint essential to a fair determination of [the crime con of evidence of one while aware cause[.]” Roviaro v. United accused’s] guilt a defendant’s or innocence of sidering States, 53, 62, 353 U.S. S.Ct. crime. does not amount another But this (1957). L.Ed.2d defendant bears part to an abuse of discretion on showing the burden of need for disclo- As Court has Supreme trial court. sure. v. Wong, United States 886 F.2d noted, a strong preference there is in the Cir.1989). 252, (9th 256 system joint trials. v. federal Zafiro States, 534, 537, 506 113 U.S. S.Ct. United postulates that CS1 While (1993); 933, 122 L.Ed.2d 317 accord Fed. any could testified to lack of knowl have 8(b) (providing P. that defendants R. Crim. edge conspir in about her involvement in the alleged participated who are have acy, knowledge point CSl’s lack of on this or in the same act of transaction same was and could elicit undisputed have been acts or transactions be in series of ed at or the through stipulation trial Furthermore, tried together). dicted and Also, testimony agent. of the case as limiting trial court gave here the instruc observed, testimony district court such for the to consider evidence tions Israel, would of limited have been value to and to appellants sepa each of against non-knowledge for the informant’s would See rately guilt. evaluate each one’s Unit have to refute government’s done little Fernandez, 1199, v. ed States Israel’s persuasive otherwise evidence of Cir.2004) (9th (specifying a dis 1243 in conspiracy. affirmative involvement limiting court’s instructions for the trict Furthermore, government rely did not guilt jury to “evaluate each defendant’s of any aspect against on CS1 in its case sufficiently] ... than separately more Israel; trans CS1 was involved guard against possibility prejudice of defendants”). indictment, action in her there is contained There is no indication to the dispute no separately unable to about facts to which CS1 was testified, trial against the case each defen evaluate could and the involvement have Thus, argu dant. Decoud’s severance securing government’s wire CS1 ment, waived, if not is not meritorious. compel tap insufficient disclosure identity. the informant’s See United D. of Informant Non-disclosure Williams, 1400, 1402 v. States Notwithstanding ac Israel’s (9th Cir.1990). knowledgment government’s con reasons, For Israel has not carried these informant, CS1, had no contact fidential proving that the disclosure burden appellants,

with the Israel contends that identity to a is “essential informant’s court its the district abused discretion Roviaro, fair determination” of her case. denying disclosure of information about 62, must 353 U.S. at 77 S.Ct. 623. We compel A trial refusal to dis CS1. court’s court conclude the district therefore informant’s closure of confidential identi declining did not abuse its discretion ty is reviewed an abuse discretion. of the confidential Henderson, 638, compel the identification v. States F.3d Cir.2000) amended). (9th (as Non- informant. Evidentiary Rulings E. ing exchange government between counsel and the expert: question also evi- appellants various Q: page What is on 2? made dentiary rulings the district court Page A: 2 is prints the 35 from the during evidentiary trial. A trial court’s Department of given Justice [sic] rulings generally are reviewed for an the booking number and the date of abuse discretion. Old v. United Chief arrest, States, subject print- when the 519 U.S. 174 n. 117 S.Ct. 644, 136 (1997); ed. L.Ed.2d 574 United States Alvarez, (9th F.3d Cir. Q: Now, page who does 2 relate to? “ 2004) (noting a district court’s “wide dis prints A: This belong prints [sic] to the ” cretion’ (quoting Long, United States v. I compared to the submitted Cir.1983))). Un prints. standard, der an evidentiary ruling this Q: just Focusing page who do “ will be reversed if such error ‘more ” prints belong those to? likely than not affected the verdict.’ They belong A: subject on the [sic] Pang, United States v. name is Audra Rene Trice. (9th Cir.2004) (quoting United States v. (9th Cir.2001)). Q: Angwin, you And did compare prints those page

on prints to the that were you submitted to on page 3? Fingerprint Expert’s 1. Trial Testi- mony Yes, A: I did. Q: you And—did come to conclu- Israel takes with issue the dis sions?

trict fingerprint court’s admission of the A: That it was the They same. were a expert’s testimony that fingerprints the match and it belonged to the taken in connection same with Israel’s 1990 subject. conviction matched the fingerprints she Although submitted 2002. the 1990 illustrates, As this excerpt jury only the fingerprint card was never introduced in fingerprint heard the expert compare fin- evidence and the district court excluded gerprints taken at Israel’s 2002 arrest with the 2002 fingerprints, Israel claims that fingerprints on another document involv- the go district court did not far enough ing an arrest and conclude the two granted should have her request sets matched. The record shows that the strike expert’s testimony because that expert nothing said else. Based on this testimony “highly prejudicial” as it record, the district court did not abuse its linked her to the excluded 1990 convic discretion declining to strike finger- tion. print-comparison testimony.

Israel is mistaken finger- Moreover, because the assuming that there was er- print expert ror, did not inform the of her Israel has failed to establish that such government conviction. The asked error likely more than not affected the expert to compare prints jury’s taken at verdict. As Israel testified to hav- Israel’s arrest in 2002 fingerprint with the occasions, been convicted on prior two conviction, card from the 1990 but expert’s indication that she had been source of the card was not previously disclosed to the arrested was not materially jury. testimony The concerning prejudicial. the 1990 We find no reason to disturb fingerprint card was limited to the evidentiary follow- the district court’s ruling. trying failing keep that after meant Prior Convictions Israel’s out, Rule 609 the defendant who evidence objects to the district also prior her convic- preemptively introduced allowing government decision court’s right to sting tion to lessen its waived her testimony her two her impeach Id. challenge ruling appeal. the initial under Rule convictions prior-possession prior that these convic states 609.4 She in all predicament Israel’s is the same instant no relevance to the tions bore The record indicates respects. material their conspiracy and offense of that she had to make the that Israel knew outweighed greatly value prejudicial to reveal or to difficult election of whether government The probative value. their conviction on prior conceal evidence of her demurs, that Israel has waived asserting deliberately examination. She direct challenge the admission right her impact prior sought to lessen by testifying convictions prior these mentioning it in her direct conviction on direct examination. about them govern- testimony allowing rather than to introduce it on cross-examination. ment right. In Ohler government (explaining See id. at S.Ct. States, 753, 120 529 U.S. S.Ct. may not “short-circuit” that a defendant (2000), Supreme 146 L.Ed.2d 826 right to decide whether government’s that a defendant pronounced Court against by offering to use evidence evidentiary ruling allowing appeal its ad- preserve evidence and “still herself convic prior of evidence of a the admission appeal”). as a claim of error on mission introduced the if the defendant herself tion “preemp- clear: once a defendant Ohler is conviction, if the defendant prior even tively prior evidence of a con- 760, introduces at objected ruling. to the Id. properly examination!, Ohler, she] viction on direct In the district court 1851. S.Ct. testified,[the] appeal not on claim that the admission prior if had ruled “that Ohler 760, was error.” Id. at under Rule such evidence conviction would be admissible 609(a)(1).” therefore conclude at 120 S.Ct. S.Ct. 1851. We must Id. 1851. opportunity case was before us on direct that Israel has waived When the evidentiary ruling. that the defen appeal we had concluded this appeal, objection to the ad dant had waived her Testimony Agent’s Trial 3. Case missibility prior conviction intro during of the conviction ducing evidence trial and agent testified at The case F.3d 1200 her direct examination. 169 background infor- provided the (9th Cir.1999). Supreme grant The Court on investigation, focusing mation about the certiorari, 528 U.S. 120 S.Ct. ed April investigation of the beginning (1999), and affirmed our 145 L.Ed.2d 289 She July 2001 CS1 was involved. when decision. gather described how she used CS1 sales in a about cocaine-base that, information it where made clear Court pur- drug noted the concerned, certain area and also trial are de- tough decisions and an- Page made from chases that CS1 consequences fendant must live with the Based on the inter- co-conspirator. from his choices. 529 U.S. that flow observations, Ohler, and her 758-59, cepted phone calls 1851. In this S.Ct. determines year and if the court testimony excess of one impeaching the of the ac- 4. When cused, 609(a)(1) probative the evidence out- value of provides evidence that the Rule R. Evid. weighs prejudicial effect. Fed. if that its prior is admissible of a conviction 609(a)(1). by imprisonment punishable crime was agent the case also testified about the role provide its offer to limiting with a played by co-conspirators, several not but instruction that mitigated, could have if appellants about the roles of the here. At negated, not hearsay Israel’s concerns. points, objected Further, several the defense on provides she no case law or other grounds hearsay lack of foundation. authority support argument. Ac- striking The district court discussed cer- cordingly, we must conclude that Israel tain portions testimony, but ulti- has failed to show that the district court mately did, however, did do so. It abused its discretion in not limiting the instruction, give limiting jury offer to agent’s testimony. case request, should the defense so Expert Testimony Drug Codes agent’s testimony

case was not admitted truth of the matter asserted. The Israel next takes issue with the proposed defense never a limiting instruc- district court’s decision to allow the testi tion, the court provide did not one sua mony witness, of another government’s sponte. drug expert. objects She to the drug ex pert’s argues explanation that

Israel now certain words and agent’s case background phrases caught on testimony tape were actually constitutes inadmis- code hearsay drug sible deals and proper drug lacks foundation. use. claims this evidence was not In Daubert v. Merrell Dow Pharmaceu agent’s

within the case personal knowledge ticals, Inc., 509 U.S. 113 S.Ct. hearsay relayed and was by others. This (1993), 125 L.Ed.2d 469 Supreme contention is not borne out in the record. guiding Court set forth the principle that agent

The case testified about her direct “under the Rules [of the trial Evidence] CS1, interactions with which par- judge included must ensure that and all scienti ticipating in surveillance on the transac- fic testimony or evidence admitted is not addition, relevant, tions to which she In testified. 589, 113 but reliable.” Id. at agent gave the case description of the S.Ct. 2786. In order to assist the trial reviewed, records she task, such as telephone- courts with this the Court suggested flexible, subscriber information for numbers called a approach factor-based analyz CS1, and told the ing reliability she had expert testimony. of Id. listened to each 593-95, one of the approximately at 113 S.Ct. 2786. Although not 7,000 intercepted calls in list, (1) involved the case. an exclusive these factors include: Further, when it came to identifying the whether a tested; method can or has been (2) roles various played individuals in the con- the known or potential error; rate of (3) spiracy, she described the nature of her whether the methods have been sub investigation (4) for each jected review; individual. peer whether there are standards controlling the technique’s objections, hand, Israel’s on the other (5) operation; and the general acceptance specificity. lack Israel does not identify of the method within the relevant commu aspects what of agent’s testimony the case 593-94, 113 nity. Id. at S.Ct. 2786. lack proper foundations or constitute inad- hearsay. only missible alleges Israel in a The Court has further held that the trial conclusory testimony manner that the was judge’s responsibility keep unreliable and inadmissible should have been expert exclud- testimony from the applies to ed the district court. Israel expert testimony, also all only not to “scienti- explain doesn’t why she or the appel- other fic” testimony. Tire Kumho Co. v. Carmi- chael, lants did not up take the district 137, 148, 1167, court on 526 U.S. 119 S.Ct. (1999). words, other district court admitting L.Ed.2d 238 In erred testi- obligation” gatekeeping applies mony “basic court solely this because the relied cases, one, force in as equal such this expert’s general-qualifications without experts wish to re where “non-seientific” receiving explanation a sufficient of the derived from specialized late observations at interpreta- methods used to arrive his foreign and that is knowledge experience previously tions of words that he had not jurors. Kumho Tire also to most Id. encountered. judge clear that “the trial must makes Not so. The defendants in Hermanek leeway considerable in a deciding have appealed a district court’s to allow decision go case how to about determin particular government’s expert interpret particular expert testimony whether is commonly words not phrases used at rehable.” Id. 119 S.Ct. 1167. We drug that he had previously trade not therefore review the district court’s deci heard. 1090. govern- 289 F.3d at The not to ex government sion exclude the ment at only trial had described the ex- testimony pert’s for abuse discretion pert’s interpreting method for words com- if that requires reversal decision ” “ monly trade, drug used in the words with ‘manifestly erroneous.’ United States which was familiar. Id. at 1093. expert Hankey, 203 F.3d Cir. v. government’s explana- We found that the 2000) Joiner, (quoting Gen. Elec. Co. assessing tion no basis for “offer[ed] 139 L.Ed.2d U.S. S.Ct. reliability expert’s interpretation [the (1997)). phrases words and for the encountered expert’s testimony, Prior to the the dis- first time in this case.” also ex- Id. We at hearing trict court held Daubert which government’s pressed concern with the of- expert methodology explained “at proof fer of one of the because least interpret of the he used each handful government’s words listed on the offer un- expert explained words. disputed ‘commonly drug der rubric of used’ that for words that he had heard be- expert] terms with was ‘famil- [the which fore, interpretation he based of such his ... expert].” iar’ familiar was not to [the (1) his training words on three factors: improp- Id. We held that the district court (2) experience; each word the con- erly expert’s qualifi- general relied on the call; (3) specific of the phone text each assuring interpre- cations without that his call in the phone phone context of particular tations of encoded words were calls that he understood. supported by reliable methods.5 Id. expresses doubt over reliabili Nonetheless, “the we concluded that expert’s ty interpreta methods error, serious, harmless” in although tion, expert’s specifically disputing tes incriminating of all the consideration timony meaning that he the knew such jury. properly that the evidence was before “diznerty,” “woop-wop,” as slang terms Id. at 1096. “weezy,” my speezy.” and “shake Here, to the maintains, setting in addition forth citing United States Herma nek, (9th Cir.2002), the fo- expert’s experience, government F.3d 289 1076 approves panel ry to Rule ... holding note 702 5. The Hermanek limited its committee’s government stating, do testimony "[w]e not hold that expert such where the 'method qualified interpret expert ... can to never application agent the of exten- used the is drug using words and coded conversations experience analyze meaning the to sive the ” phrases experienced time the for the first in Hermanek, conversations.' issue[,]” prosecution at that "[t]he and adviso- 1014 necessary the expert’s methodology requisite on the for in intent to commit cused ” words, thereby the

terpreting underlying new encoded substantive offense.’ 1076, See complying Chong, with Hermanek.6 id. at United 419 States v. F.3d (9th Cir.2005) government (noting expert that the (quoting 1094 1079 United States explain Pemberton, “failed to in detail the knowl v. F.2d 733 Cir. edge, 1988)). and investigatory established, facts evidence he conspiracy Once a from”). Thus, drawing was the concerns can government prove a defendant’s government expert’s testimony with the “knowing with evidence of participation” expressed present Hermanek are not con defendant’s “connection with the here. We resolve that district court spiracy.” Delgado, States v. faithfully followed the strictures Herma (9th Cir.2004). fulfilling gatekeeping its function nek in allowing

under Daubert and did not err Against 1. Trial Evidence Decoud government’s expert testify to as to argues that govern Decoud meaning encoded the new words. present any ment failed to evidence engaged agreement he an to commit Sufficiency F. of Evidence crime with else. anyone He concedes We next encounter Decoud and Israel’s sale,” “prepared drugs he but main argument that the district court erred in tains that he so his own not as did denying their for a judgment motions of part any conspiracy. He claims acquittal conspiracy charge. They on the there proof money was no he claim that presented the evidence at trial obtained from sales was distributed oth insufficient to support jury’s ver- ers conspiracy. involved in a He further dict. claims that was no him there evidence of We review claims of insufficient evidence having a telephone Page conversation with de novo. or another of the con conspiracy member cerning an illegal matters of He nature. v. Shipsey, United States questions could agree how he have had an (9th Cir.2004). 962, 971 n. In a criminal ment with in a conspiracy others when prosecution, is sufficient “[t]here evidence spoke any there is no that he evidence if, support a ‘viewing conviction one in conspiracy. light evidence in the most favorable to the however, prosecution, any record, rational trier of fact provides could a differ- have found the ent govern- essential elements of the account of the evidence. The ” beyond crime a reasonable doubt.’ Id. ment calls intercepted introduced several (quoting Virginia, Page they Jackson v. 443 U.S. between and Decoud in which (1979)). L.Ed.2d example, S.Ct. discussed cocaine base. For conviction, calls, sustain conspiracy To a federal one Page series of Decoud and dis- “ ‘(1) government prove must an cussed a cocaine batch of base that Decoud agreement accomplish illegal objec prepared Page had “Capone.” sell to (2) tive, one or coupled Capone more acts in had about complained quality (3) illegal purpose, drugs Page furtherance of the and Decoud agreed as, housez,' example, gave expert lengthy something 6. For the a ex- 'such I'm at his like planation interpreted "diznerty” how of he slang, that. Just as a certain words. certain understanding based on his of a here[,] common 'diznerty' dirty” just slang And a speaking style in "most black communities” added). (emphasis ' 1 words, they put where "will ‘e or 'ez Page her to conspiracy, analogizing At re- the overall replace point, them. one to boy,” as which the to Decoud “his ferred Umagat, her case to United States to mean his decoding expert translated (9th Cir.1993). In Umagat, F.2d 770 we associate, or There was cook. partner, held to that there was insufficient evidence met with that Decoud also Ca- evidence of to permit impute a trier fact to two of to deliver the substitute batch. In pone knowledge of a conspir- defendants call, made while Decoud was later acy smuggle marijuana. to Id. at 774. apartment cooking another batch of Page’s that indictment alleged We reasoned base, that he cocaine Decoud confirmed conspiracy joined incep- an overall after its yet In an- replaced Capone’s drugs. had tion and that both defendants the evi- call, that his Page told Decoud cus- dence showed each was involved defendant unhappy with the batch of tomers were in a was single transaction which that Decoud had cooked and cocaine base part ongoing conspiracy. Id. at to fix batch. Decoud told Decoud another gov- further that 773-74. We noted jury The also learned of agreed do so. offer any ernment did not other evidence gave Page step-by- Decoud a call where knowledge on how correct another as to defendants’ step instructions of of cocaine base. batch conspiracy. Id. no may it be true that there was While readily The instant case is distin he sharing profits, of Decoud fails

evidence guishable because Israel’s involvement was any authority this fact suggests to cite that transaction, membership conspiracy. single in the negates his not limited to a and the hand, on the other cites government, The multiple intercepted calls between Israel Boswell, States v. of Page knowledge and established Israel’s (4th Cir.1967), “a proposition for the conspiracy. phone calls the overall The sharing conspiracy of fruits of the has played variety that Israel demonstrate ... been held to be an essential never drug roles in distribution Page’s business. course, a of the offense.” Of divi- element instance, call, in one Israel responded For part be an of a profits integral sion of Page’s complaint losses about business Id. The conspiracy proof and the same. Page to con and to introduce offered however, is know of no point, that we In drug nections in the trade. another authority holds that evidence of a call, Page, go-between as a Israel acted is essential for convic- profits division Page’s drugs. Trice arranging for to sell accordingly may we conspiracy, tion of evidencing The heard calls also conspiracy affirm Decoud’s conviction a drug Israel transaction be facilitated money obtained without evidence Trice, drugs for Page tween delivered drug to others from sales distributed drugs at her Page, Page’s stored light In conspiracy. in the Id. involved that Decoud overwhelming evidence house. Page’s drug drugs sold prepared the presented government also we hold that there was suffi- organization, in a participation with evidence Israel’s support jury’s ver- cient evidence quar- the sale of a involving series of calls Jackson, 319, dict. 443 U.S. at S.Ct. $5,400. At ter of cocaine base kilo 2781; n. 363 F.3d at 971 8. Shipsey, calls, during times those Israel referred Against Israel 2. Trial Evidence words, slang various such drugs ball,” ex- and also as and “little “crumbs” pre- evidence argues that the also money generated pressed to link the view against her was too isolated sented belonged from to her and Counsel for Page contemporaneously the sale Trice jointly. Thus, voiced per- the same concerns. we ceive no barrier to review of the our claims trial totality evidence demon- on their merits. Page strates that worked with Israel his drug-trafficking operation, shared the sales,

profits drug knowing- from the illicit 2. Dismissal Just for Cause house, ly her stored crack at met with recognize Israel and Trice that re customers, and, direction, Page’s at took ligious preventing juror convictions from money from customers and delivered rendering a good verdict amount to cause drugs Accordingly, to them. there was juror’s They for that argue, dismissal. support more than sufficient evidence to however, No. that Juror 8 lied to the dis Jackson, jury’s verdict. at U.S. trict court reason wanting about her 2781; Shipsey, 99 S.Ct. 363 F.3d at she, fact, be excused and that was able n. 971 8. impartially. deliberate G. Dismissal of Juror Symington, United States v. (9th Cir.1999), at on which appel-

We now arrive and Trice’s rely, shared lants they contention that were concerned scenario that denied very right their to a different impartial jury present fair from case. There, day when the district court eighth dismissed Juror deliberations They trial, No. 8. challenge following also the district a three-month the district court’s decision not to hold an evidentiary court from jury received a note indicat- “ hearing light on the ing issue of their that juror new- has ‘[o]ne stated their [sic] ” trial motions. opinion final prior to review of all counts.’ Id. 1083. The district court sent back a

1. Invited Error note reminding jurors “of duty their The government participate asserts that in deliberations with each oth- er, these claims are waived under the invited- but also emphasizing juror that each error doctrine because Israel’s counsel should make up his her own mind on agreed with the charges.” later, district court’s decision to the days Id. Several dismiss Juror No. due to her testimony sent another note the court indicat- religious prevented juror views her properly from one “cannot partici- determining guilt.7 pate defendant’s The in in the discussion” for various reasons vited-error apply doctrine does not including juror’s here. “[inability to main- First, in way Israel’s no tain subject discussion[, counsel invited the a focus on the Second, “error.” on the inability discussion[, immediate heels to recall topics under rjefusal of his concurring statement that the court to discuss views with other excusing juror, was “correct” in jurors.” Isra Id. court ques- The district then el’s counsel into an argument launched tioned juror individually. each Id. at a mistrial because the was “the Every juror (except 1083-84. the one that black person” on the subject and her exclu was the the complaint) stated sion would be unfair” “grossly given that there particular juror was one who the appellants views, all are African-American. refused to explain stating she Perez, right. An error is waived unreviewable when United States a defendant (en banc). both invites error and Cir.1997) affir- matively relinquishes or abandons a known

1017 (2d Burrous, 147 117 any- States v. F.3d herself to explain not “have to did Cir.1998) ju the of (permitting removal a body.” at 1084. Id. just juror’s due to ror for cause the indica the “statements noted that Our decision during deliberation that he is unable tion jurors that their frustra- indicated of some “personal render verdict of a because juror] may have with derived tion [the objection”); v. religious United States Gef on disagreement with her more from their (11th Cir.1996) 448, 451 frard, 87 F.3d case, the or at least from merits of the (affirming juror the dismissal of who of with her defense their dissatisfaction in a the that judge wrote letter to her pointed out that her Id. We also views.” made feel that she religious beliefs her juror prepared that she was the “stated guilty not with a of for could “live verdict deliberating” and “that the other continue any charges”). the any of accused on of the might her be- jurors’ frustration with illustrates, amply the As the record dis agree majority the can’t cause ‘[she] care in into inquiring trict court took the Expressing the I” Id. concern all time... juror’s the deliberations, gave circumstances that rise to sanctity of we over the request discharge, making sure that evidence held if the record discloses “that possibility that there was no reasonable that possibility impetus the any reasonable ju- juror’s juror dismissal stems from the harbored some other reason for the case, the merits of the the discharge, ror’s views on such as her views on the merits ju- must not dismiss the court ques [district] the case. defense counsel When in original). (emphasis ror.” Id. at 1087 juror, again the once there was tioned standard, the this we reversed Applying absolutely nothing ju suggest the conviction, judgment concluding problem anything ror’s stemmed from oth possibility that “there was a reasonable religion. In er than observance of juror]’s views on the merits of [the deed, defense counsel remarked that provided the for her remov- impetus case her. dismissing was “correct” Be court Id. al.” at 1088. supports cause substantial evidence juror court’s assessment district Here, No. asked be excused Juror and per further was unable to deliberate and, religious because of her convictions jury, form her duties as member specifically judge, she when asked no court’s find error the district impro- had been we confirmed that there no juror.9 jurors. E.g., dismissal prieties by the other United Moreover, was in the Symington that the district court best 8. We clarified in "the stan juror's credibility position to evaluate any possibility, dard reasonable religious that her convictions when she stated possibility Symington, whatever.” 195 F.3d deliberating prevented case. her from original). (emphasis at 1087 n. 5 Under " Beard, v. See States possible standing 'anything is in a ” Cir.1998) (9th (stressing that the deci mechanics[,]’ pur quantum world we juror to excuse a is committed to sion posefully fixing a standard that would avoided af discretion and must be district court's [only "prohibit juror where] dismissal there is appeals court is left with the firmed unless possibility dis no at all that the and firm conviction that district definite position of her on the mer missed because judgment); a clear court committed error Watkins, (quoting Id. United States v. its[.]" Enters., Inc., Rest. accord Nichols Azteca Cir.1993) (Ea sterb (9th Cir.2001) (giving observed, rook, J., dissenting)). As we such findings "great re deference to district court " "prohibit dis standard would unattainable credibility” conferring lating 'even ” cases.” Id. missal in all findings when factual greater deference’ (quoting credibility determinations rest Challenge juror 3. present Post-verdict to Juror’s be further examina- Dismissal The tion. district court declined to do so First, independent for two reasons. it not- addition, In Trice claim and ed that had an already opportunity counsel entitled to a post-verdict they that were juror the question at the time when she evidentiary hearing ju with the dismissed sought discharged jury. from the present light ror of the that declaration Second, the court a inqui- held that further sentencing. their sister before submitted ry juror’s into the participation the noted, As the sister declared that she had jury’s improper deliberations would be un- juror coincidentally run into the dismissed 606(b).10 Rule der juror at a bank and that had believed the implied that racial motivations factored appeal, On Trice and Israel do not argue into her to be excused the desire from district the court its abused discretion and been a acquit that she had holdout for denying a hearing based on its and tal. previous counsel’s examination ju- Rather, they ror. challenge focus their a We district court’s denial review 606(b) the district court’s Rule rationale. evidentiary of an hearing concerning a dis 606(b) argues Trice that Rule does not juror an missed abuse of discretion. jurors prohibit testifying from about evi- Saya, United 929, States v. 247 F.3d 934 of dence racial bias and relies on (9th Cir.2001). A district not court is re v. Henley, States 1111, 238 1120 quired evidentiary hearing upon to hold an Cir.2001). every juror misconduct, allegation in determining hearing, whether to hold a Although Henley implied in dictum that it should the consider content of the alle prejudice evidence racial might be ex- gations, alleged the seriousness of the mis 606(b)’s empt from Rule restriction on conduct, credibility and the of the source. evidence, post-trial 1120-21, F.3d at 238 Id. at 934-35. Henley specifically referring was to racial “ bar, In hearing the case at at the on the specific bias ‘unrelated to the issues that ” motions, requested new-trial juror defense Id. upon was called to decide.’ v. Spain, arrange the court for the Rushen (quoting dismissed at 1120 464 U.S. Bessemer, 564, City Anderson v. U.S. Upon inquiry validity 470 an into the of a ver- 575, 1504, (1985))). ..., 105 S.Ct. 84 L.Ed.2d juror may testify any dict not as to noted, As No. 8 in Juror no uncertain terms occurring or during matter statement judge jurors told the had said or jury’s course of the deliberations or to the anything done request to motivate her to be anything upon any effect of that or jury. excused from The district court juror’s influencing mind or as emotions juror’s testimony believed the to be extraordi- juror to assent to or dissent from the ver- sincere, narily articulate and found that concerning juror’s or ... dict mental she pretext. therewith, entertained no undisclosed We processes except in connection entirely conclude that the district juror court acted may testify question on the juror's believing within its discretion in prejudicial whether extraneous information Id.; stated reason for dismissal. see also improperly brought jury’s was to the atten- Witt, 424, Wainwright v. 469 U.S. any or tion whether influence outside (1985) (permitting S.Ct. 83 L.Ed.2d 841 improperly brought upon any juror. to bear juror's discharge particular for cause if a ... Nor evidence of statement prevents substantially impairs belief juror concerning a matter about which performance duties). juror’s precluded testify- would be from purposes. be received for these 606(b) 606(b). provides Rule part: in relevant Fed. R. Evid freely 114, 121 5, 104 right operate possible as as from L.Ed.2d n. S.Ct. intrusions”)), (1983) curiam)); see also cert. de (per Williams outside unauthorized (Ali (3d Cir.2003) (2004). Price, nied, 543 U.S. S.Ct. 814 J.) to, (detecting Henley’s “dictum” sanctity jurors’ deliberations holding in actual out pointing compromised they “[t]he if seriously would be bias”). In racial Henley not concern did subject post-verdict were examination deed, where Henley presented instance juror, participate who did not because carpool juror racist remarks while a made verdict, the felt racial pressure some when Henley, trial. 238 ing to and from the successfully sought discharge she a dis Here, that at 1114. to the extent the F.3d adequate ground. tinct and racial mat alluded to sister’s declaration more, 606(b) What is if Rule is removed ters, it not evidence of racial did reflect appellants’ of from the consideration the against the and related bias defendants trial, inadequacy for a new the of motions juror’s position on purely to the dismissed Indeed, apparent. the is still declaration or guilt the of the defendants’ innoc merits vague the nature of the speculative and allegation of racial ence.11 There was no finding a the precludes declaration that racially-biased juror, indicating epithets court its In district abused discretion. Id.; Henley. had been in as there cf. Woodford, rejected we Fields v. defen- Heller, 1524, F.2d v. 785 United States jurors ra- dant’s claim that several were (11th Cir.1986) (concluding that eth 1527 cially him prejudiced against because “as- upon nic bias a mistrial discov warranted suming upon that the declarations which ery that deliberations consisted of numer admissible, they vague he are are relies jokes made ous slurs and anti-Semitic they any and do not show that speculative; the that juror about Jewish defendant racist 315 F.3d statements were made.” “gales laughter”). of Rath were met with Cir.2002) (9th (as amended). 1062, 1063 er, at the claimed that most declaration any “lack compared Fields of substan- juror “implied” that she felt the dismissed tial it to other cases find- evidence” before pressure she a “hold racial because ing sufficiently weighty Henley, evidence: juror and the out.” While dismissed 1114, juror had 238 at which F.3d African-American, this fact appellants are niggers guilty,” that are and declared “the piercing the secre alone does not warrant 1287, Smith, F.Supp. v. 468 1289- Tobias sanctity cy and of deliberations (W.D.N.Y.1979), in which the fore- 90 finality of the disrupting process. See “[y]ou tell one had can’t person stated (9th Cir.) Hall, 952, Brewer v. 378 F.3d 956 Fields, at 315 F.3d black from another.” States, v. 350 (citing Remmer United U.S. added). (emphasis 1063 (1956) 377, 425, 435 76 S.Ct. L.Ed. Fields, at issue objective As in the declaration that is the law’s (instructing “it any statements jury’s alleges racist guard jealously sanctity of neither 606(b)); 606(b) per United States clearly inadmissible Rule 11. Rule bars consideration Tollman, Cir.1991) (8th allegation juror v. 952 F.2d that the said declaration's ("To proof subjected pressure by contentiousness and con other admit that she was 606(b) acquittal.” impeach Rule jurors being flict to a verdict under a "holdout for rule.”); Briggs, to eviscerate the would be See United States v. Norton, (11th (7th Cir.2002) juror (barring evidence of one States “ 1989) jurors (noting "alleged harassment or being into Cir. 'intimidated' find juror by would guilty”); of one another also United intimidation [the defendant] see Brito, impeach competent evidence to Cir. States v. verdict”). 1998) (deeming guilty coercion evidence internal provides were nor “substantial made evi to find a of a guilty defendant crime. Id. jurors dence” that were racially at juror 1175. The stated he would. prejudiced against the appellants. Id. at remanding Id. In evidentiary hear- forth The declaration sets ing, we emphasized credibility that the sister’s “im belief dismissed doubt, allegation juror’s was not in plied might there have been some susceptibility to improper influence was racial her implications pressure get heightened because the contact involved a off In the case.” view of the declarant’s officer, court opportunity there was no (Israel obvious bias favor of her sisters parte address the ex contact at trial Trice), fact testimony that her trial light only because it came to after the appears rejected by to have been verdict. at 1177. Id. jury,12 thorough and Juror No. 8’s exami Several of the critical factors Brande contrary testimony nation the time First, are here. absent Juror No. 8 was discharge when deliberation events not a of that member convicted mind, were in her fresh we conclude that appellants. Second, Juror No. 8 was the district court did not its abuse discre not approached a officer or any- court declining tion in evidentiary an hearing. Third, government. one from the as we See Shryock, United States v. noted, have already the sister’s declaration (9th Cir.2003) (upholding 974 district is speculative Finally, at best. unlike court’s refusal conduct a further eviden- Brande, Juror No. 8’s fully dismissal was tiary hearing finding based on regard its by the judge considered trial before juror’s ing credibility), the affected cert. juror— a substituted alternate —with denied, (2004). 541 124 U.S. S.Ct. 1736 Thus, appellants. convicted the even if the attempts Trice also to liken her case to were declaration under admissible Rule Brande, v. United States 329 F.3d 1173 606(b), the district court not did abuse its (9th Cir.2003). That case involved one discretion in an declining to hold evidentia- juror reporting post-trial ju- that another ry hearing.13 ror, expressing after that the view he was anyone unable to guilty find on account of Sentencing H. Issues personal religious beliefs, had been ap- proached by personnel district Finally, court we reach the appellants’ various questioned about challenges whether he would be able their respective sentences. trial, 12. The district court juror "implied have doubted the the dismissed had that credibility sister’s had because she testified at might implica- there have been some racial trial any- that her sisters would never have case,” pressure get tions to her to off thing drugs, perspective to with do a suggested had "that attorneys the defense jury obviously rejected. contact her.” The record contains no affida- juror vit from either dismissed defense dissent, Contrary language to some in the record, counsel. On this we are forced to we do prejudice not condone racial within a judge conclude that district of Rather, —mindful jury. conscious of our role as an juror’s firmly expressed the dismissed reason court, appellate we judge hold that the district being specific excused her denial that did determining not abuse her discretion had her influenced decision to that appellants failed a to make sufficient excused, potential seek to and of im- showing possible racial bias warrant an propriety questioning jurors about the con- evidentiary hearing. The district court had tent of not their deliberations —did abuse her before it an affidavit a sister of two of appellants. alleged declining evidentiary discretion in an during sister that hold hearing. chance encounter over two months after the grams more than 50 of a mixture contain Claims 1. Booker ing finding, cocaine base. This combined error under Decoud claims conviction, felony prior drug with Decoud’s Booker, 220, 125 S.Ct. v. 543 U.S. States mandatory-minimum authorized sen (2005), arguing that 160 L.Ed.2d 20-years imprisonment. tence of See his sen- wrongly based district court (b)(1)(A)(iii) § (mandating U.S.C. judge-made finding on his tence years minimum sentence of 20 for a sec base involved cocaine conspiracy offense par who is ond-time offender convicted alleges powder what he to be rather than in a transaction involv ticipating narcotics complains that the Decoud also cocaine.14 base). of cocaine grams at least drugs at- the amount of judge determined Moreover, we have determined “Book ra- Employing him. similar tributed to mandatory minim er does bear tionale, argues that the court Trice district Cardenas, United States v. ums[.]”15 prior on one of her not have relied should (9th Cir.2005). 1046, 1048 to enhance her be- convictions sentence fact had not admitted to the cause she sentencing respect With to Trice’s chal by a conviction nor was it found prior lenge, acknowledges existing law she plain review these claims for jury. We nonetheless argument forecloses but Ameline, See United States error. correctly position. seeks to assert her She (2005) (“If eligible par- exempted specifically notes that Booker ], under we ty resentencing [ Booker seeks category en prior convictions from plain analy- in engage then the error will “must hancing facts that be admitted sis[.]”). beyond jury or to a a proved the defendant Booker, 543 is reasonable doubt.” U.S. sentencing challenge not Decoud’s 244, 125 This court has held the the S.Ct. 738. taken it is based on false well because same, observing that does not af judicial Booker finding that a enhanced premise sentencing the unmistakably fect enhancements based on The record his sentence. States v. prior on fact of a conviction. United that Decoud was sentenced the reveals (9th 1224, verdict, 1226 Cir. beyond Delaney, jury’s special which found 2005). fails conspired Accordingly, argument Trice’s a reasonable doubt that Decoud authority. weight under the of this for of distribution possess purposes drug to the offenses appeal pending, the Su- arm in relation While this was 14. charged. argues down decision in there preme Court handed its was He which he Booker, holding sentencing that the federal this in the basis for enhancement was no guidelines violated a defen- as constituted Any jury’s verdict. Booker error that right jury a trial. dant’s Sixth Amendment harmless, occurred, however, as have was 245, outcome U.S. at 125 S.Ct. 738. That applied statutory would to De- minimum have that, a in man- followed from conclusion pos- regardless the enhancement for coud sentencing datory regime, the Sixth Amend- Cardenas, v. 405 F.3d United States session. enhancing precludes judge from ment (9th Cir.2005); 1046, see also United beyond statutory maximum sentence Ameline, (9th v. States jury by a that are not found or based on facts (en banc) Cir.2005) (noting is remand by the Id. at admitted defendant. only necessary to Booker errors correct Court, however, S.Ct. 738. The remedied reliably possible determine “where it not infirmity by perceived render- constitutional im- whether the sentence the record from merely advisory rather than guidelines tire materially posed been different would have mandatory. Id. at 125 S.Ct. 738. the Guide- district court known that had the sentencing objects advisory”). to the en- were also lines Decoud possessing a for fire- hancement he received member, 2. Limited Remand American Juror No. 8. This same deliberations, juror, after a day asked to limited for Israel seeks a remand dismissed. She claimed she could not regarding district court to correct an error deliberate, continue to despite the fact that supervised even term release actively she had been participating de- though did not raise the below. she issue questions sending liberations and out She notes that the district court sentenced Judge up until that point, because her a supervised-release her to term of 10 religious prevented beliefs her from sitting years prior on a based conviction that the judgment person. of another The Dis- government withdrew. She asserts that trict Court accepted explana- Juror No. 8’s years. proper term is five tion and ju- dismissed her. An alternate aWhen defendant raises an issue on ror, African-American, who is not appeal presented that was not to the dis- impaneled. then began delibera- court, trict of appeals may the court re- anew, eventually tions each finding Appel- for plain view error. Fed. R. P. Crim. guilty charges lant against her. 52(b); Jordan, see also United States convicted, After Appellants were Cir.2001) (reviewing they moved new trial based plain error a challenge sentencing sister, affidavit submitted their Shondra that the defendant did raise before the According affidavit, White. to the a couple court). Here, however, gov- district trial, months after the while a local ernment concedes it pri- that withdrew the bank, approached by White was Juror No. objection conviction and has no to our recognized who White from the trial. vacating supervised Israel’s term of re- herself, White After identified Juror No. 8 lease allowing requested remand. told White she subject had been to severe Accordingly, a appears ap- limited remand room, pressure pres- and that propriate to afford the district court an sure, religious beliefs, not her led her to opportunity to super- reconsider Israel’s White, to be According ask dismissed. to vised-release term. Juror No. 8 “implied might that there have implications been some pressure racial to Ill get to Despite off the case.” this reasons, For foregoing all the the information, troubling the District Court appellants’ convictions and sentences are denied the Appellants’ request for an evi- AFFIRMED appellant Israel’s sen- dentiary hearing to question further Juror tence is REMANDED for reconsideration role, No. 8 regarding any, what if racial of her supervised-release term. prejudice played in the jury deliberations. First, I dissent on grounds. two the FERGUSON, Judge, Circuit dissenting: majority misconstrues United States v. I respectfully majori- dissent from the Henley, Cir.2001), 1111 ty’s approval of the District Court’s failure persuasively which that reasons racial to evidentiary hold an hearing regarding prejudice is a mental bias that is never racial jury whether bias infected that jury acceptable room. Instead of in judgment sat of Appellants disregarding Henley, apply we should its maj. op. Trice. See at 1018-20. reasoning to hold that Federal Rule of 606(b) Appellants Israel and Trice both testimony are Evidence does not bar African-American. The im- original jury regarding prejudice evidence of racial paneled Second, in their affidavit, case had one African- jury. within the White’s system,” evidence of racial bias within Juror cial with the circumstances combined jury deliberations should admissible. dismissal, sufficiently raises No. 8’s Henley, majority, 238 F.3d at 1120. The may jury have been that prospect 606(b) however, prohibit would use Rule to require an eviden- by racial bias to tainted the introduction of some evidence of racial If to hearing the matter. called tiary on This is inconsistent with the prejudice. that testify, confirm noth- Juror No. that, holding despite Supreme Court’s during delibera- ing untoward occurred 606(b), juror concern- may testify Rule “[a] evidentiary hearing an is such tions. Until mental bias matters unrelated held, however, specter preju- of racial juror specific to issues that undermines over the trial and hangs dice ” to upon (quoting called decide.... Id. De- in the verdict. See public confidence 121 n. Spain, Rushen v. U.S. the Law—Race and the velopments in (1983)). In 104 S.Ct. 78 L.Ed.2d Racist Mis- Process: VII. Juror Criminal Henley correctly we reasoned Rule Deliberations, 101 Har- During conduct 606(b)’s general inquiry into the bar (1988) (“Permitting L.Rev. vard apply does to deliberations not racially tainted expose delib- defendants prejudice testimony relating racial be- mi- public' particularly gives erations — “[rjacial prejudice plainly cause a mental less, reason, nority citizens—more any specific bias that is unrelated to issue jus- of the criminal trust the final results may legiti- in a criminal case system.”). tice mately upon to be called determine.” Henley, 238 F.3d at 1120.1 I. majority attempts distinguish The society to be a which We refuse Henley by present arguing case from guilt or innocence is decided defendant’s [White’s] “to the extent that declaration Accordingly, skin. by the color of her matters, alluded to racial it did not reflect every defendant Sixth Amendment entitles against of racial bias the defen- evidence jury. unbiased See Hen- impartial, purely to the dismissed dants and related ley, F.3d at 1120. We have held juror’s position on merits the defen- is violated “the

the Sixth Amendment Maj. op. guilt dants’ innocence.” juror.” a single of even prejudice bias or majority would al- apparently 1019. The Calderon, Dyer v. (quoting Id. long prejudice within the as low racial (9th Cir.1998)). danger explicit no evidence that as there is prejudice, bias or and the caused such the defendants. Such bias was directed at protect measures to need to take extra untenable, and violates the position a is it, recognized. against repeatedly been has premise that racial bias should never basic See, 28, Murray, 476 e.g., Turner v. U.S. process decision-making a in the play role 1683, 35-36, 90 27 106 L.Ed.2d S.Ct. If of mem- prejudice the other jury. of 79, (1986); Kentucky, v. 476 U.S. Batson 8., No. who jury of the forced Juror bers (1986). 69 106 90 L.Ed.2d S.Ct. acquittal, to off the inclined vote was case, is less trou- goal prejudice the of no To “with broad then be consistent directly at the bling racial bias aimed eliminating prejudice judi- from the than racial prejudicial in question as whether be characterized extraneous 1. Racial bias also improperly brought to the formation was prejudicial information” that has "extraneous terms, attention”); Henley, jury’s see 238 F.3d jury. By also an on its own Rule effect the Smith, 1120; F.Supp. 468 606(b) at Tobias such evidence. Fed.R.Evid. admits (W.D.N.Y.1979). 606(b) testify ("except juror may 1290 that a prejudice justified defendants because such effec- ments that have evidentiary other tively instance, of the investigations. decided the outcome case. a judge For Furthermore, prejudice pres- if the racial questioned jury a trial stopped strong enough ent room was allegation after bare that “ethnic slurs” dismissal, pressure juror a fellow it seek had been made in the room. See likely very such bias also is invaded the Heller, United States v. jurors’

remaining regarding (11th deliberations Cir.1986). the African-American defendants. majority compares White’s state- Henley dictates result this case. 2 against ment several statements of racial 606(b) We should hold that Rule does not bias discussed in within other cases this testimony bar the admission Circuit, and finds un- lacking it some racial regarding prejudice evidence quantified degree specificity. maj. See jury. within the op. at 1018-20. In most of the cases cited however, majority, evidentiary an II. held, hearing already pro- had been which Based on White’s declaration and the specific duced more and detailed state- dismissal, circumstances of No. 8’s Juror prejudice. of racial Henley, ments See Appellants are entitled an evidentia- (“the F.3d at 1113 district court conducted ry hearing regarding the existence and evidentiary hearings on the for a motions racial jury. extent of bias within their (not- Heller, trial”); new determining In whether hold heal- ing specific statements racial bias were ing, a district court “must consider the only revealed after judge stopped de- allegations, content of the the seriousness questioned jury). liberations and And bias, alleged misconduct and the v. Woodford, Fields the case on which credibility the source.” United States v. relies, majority heavily most it is not Cir.2001). Saya, 247 F.3d clear whether the appellant seeking Holding evidentiary hearing an “usually trial, evidentiary new or an hearing, based preferable,” unless “the court [knows] the on the scant evidence of racial bias. scope exact and nature of the ... extrane- (9th Cir.2002) (as amend- (internal information.” Id. quotation ous ed). in remedy This distinction sought is omitted). marks and citation since, relevant as the cases cited Here, the of the alleged seriousness mis- majority demonstrate, specific far less evi- conduct, prejudice racial jury, within the justify evidentiary dence is needed to weighs heavily in holding favor of an evi- hearing is required grant than for the of a Nonetheless, dentiary hearing. major- Here, Appellants new trial. are not ity would grave allegations dismiss such as trial, seeking merely a new but an eviden- speculative vague and based on flawed tiary hearing explore in more detail the comparisons with signifi- cases that differ implied allegations content Juror No. 8’s cantly from this case in procedural their very of racial purpose bias. The of that postures. hearing would be to specific elicit more First, of prejudice content White’s declaration statements of majority vague speculative is no more searching than state- for. majority

2. The question also calls into White's not to be credible. should we Nor assume credibility. Maj. op. at 1020. The District White's statements her about interaction with Court, however, explicitly never found White Juror No. 8 to be untrue. Second, allegations strength UTILITIES COMMISSION PUBLIC must be viewed

in White’s declaration CALIFORNIA, OF THE OF STATE According trial. the entire the context of Petitioner, statement, implied that Juror No. 8 to the behind her have been prejudice racial Nevada; Public Utilities Commission of jury. from the to seek dismissal decision Allegheny Energy Supply Company, cor- circumstantially an inference is Such Llc, Petitioners-Intervenors, dismissal of Juror by the actual roborated juror. only African-American No. Energy Cogeneration Associ Producer dismissal, her Juror No. 8 At time of Energy and Pro ation California per- another judge she could not claimed Coalition; Avista ducers Users During religious beliefs. son due her Capital Corporation; Pinnacle West however, dire, her testified beliefs voir she Electricity Corporation; California ability with her interfere would Oversight Board; California; Mirant Furthermore, re- up until her deliberate. Llc; Delta Mirant Potrero Mirant dismissal, been Juror No. had quest for Llc; Energy Americas Mar Mirant jurors, deliberating with the actively Marketing, keting, Lp; Enron Power signed questions and as evidenced two Inc.; Edison Southern California information that requests for additional Company; Trans Northern Calif. to the District Court. she submitted Agency of Northern mission Califor Juror No. initial Despite the fact that (“TANC”); Irrigation nia Modesto jurors influenced ly that the other denied (MID); Public Pow District M-S-R dismissal, request that de decision Agency; City Redding; CITY er question by into her later nial called Alto; Clara; City of of Palo Santa circumstances to White statements City Washington; Port of Seattle evidentiary Only an of her dismissal. Tacoma, Washington; Public Service contra can reconcile Juror No. 8’s hearing Colorado; Company Pacific Gas dictory See United States assertions. Power, Company; and Electric Coral Jackson, Cir. City L.L.C.; Corp.; Exelon & Coun 2000) (“The ju discrepancy between ty Francisco; of Attor Office of San during the voir dire and ror’s statements Nevada, ney for the State General investigator his statement to the calls later Protection; of Consumer Bureau can reached for a resolution that Company; Electric Portland General hearing.”). through evidentiary an Inc.; Exchange, Automated Power Co., Llc; Allegheny Energy Supply I Accordingly, find District Court Energy, Puget Puget Sound Sound by denying Appel- its discretion abused Inc.; Dynegy Energy, Market Power evidentiary hearing request lants’ Llc; Inc.; Segundo El ing, Power hearing Appel- remand for would Llc; Long Generation Cabril Beach allegations prejudice of racial within lants’ Llc; I II Power Cabrillo Power lo jury. Llc; Ppl Energyplus, Pacificorp’s; Montana; Ppl Llc; Ppl Southwest Holdings, Llc; Reliant Generation Inc.; Generation, Energy Re Power Inc.; Energy Services, Oerth liant ern; People of State of Califor notes also ... declaration extraordinarily to be articu- seemed number, sincere, late, telephone refused thought through” provide and well

Case Details

Case Name: United States v. Decoud

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 1, 2006

Citation: 456 F.3d 996

Docket Number: 04-50318, 04-50374, 04-50478

Court Abbreviation: 9th Cir.