UNITED STATES of America, Appellee-Cross-Appellant, v. William GREER, a/k/a Thomas Williams Dodds, and Stephen Brent Hutchins, Defendants-Appellants-Cross-Appellees.
Docket No. 99-1072(L).
Docket No. 99-1073(CON).
Docket No. 99-1092(XAP).
United States Court of Appeals, Second Circuit.
Argued March 23, 2000. Decided August 14, 2000. Amended March 7, 2002.
285 F.3d 158
Edward S. Zas, Federal Defender Division Appeals Bureau, Legal Aid Society, New York, NY, for Defendant-Appellant-Cross-Appellee William Greer.
Mark A. Kaplan, Burlington, VT, for Defendant-Appellant-Cross-Appellee Stephen Brent Hutchins.
Before: FEINBERG, JACOBS, and STRAUB, Circuit Judges.
STRAUB, Circuit Judge.
William Greer and Stephen Brent Hutchins appeal from judgments of conviction entered on January 27, 1999, following a jury trial in the United States District Court for the District of Vermont (William K. Sessions, III, Judge). Greer was convicted of conspiracy to import and export hashish and marijuana, violations of the Maritime Drug Law Enforcement Act (“MDLEA“),
On appeal, Greer and Hutchins raise several challenges to their convictions. First, they contend that the District Court committed reversible error by excluding the parties and counsel from in camera meetings with prospective jurors to discuss jury service hardship excuses. Second, they assert that the court further erred by failing to disclose to the parties and counsel that one prospective juror attempted to discuss issues unrelated to hardship during his in camera meeting. Third, they argue that a new trial was required because a juror failed honestly to answer material questions on voir dire and because that juror and others had been exposed to extrinsic evidence. Fourth, the defendants contend that the District Court improperly instructed the jury that a foreign nation‘s consent to enforcement of United States law, even if provided after indictment, satisfies the jurisdictional element of the MDLEA. Fifth, the defendants assert that the District Court erred by failing to state its reasons for imposing their sentences at a particular point within a United States Sentencing Guidelines (“U.S.S.G.“) range that exceeded 24 months, as required by
In its cross-appeal, the government challenges the sentences imposed by the District Court on three grounds. First, the government contends that the District Court erred in excluding from defendants’ relevant conduct, under
As explained below, we conclude that the District Court did not err by excluding the parties and counsel from in camera meetings with prospective jurors to discuss jury service hardship excuses and by not disclosing particular remarks made by one prospective juror during such an in camera meeting. We further hold that the District Court did not exceed its allowable discretion in denying defendants’ motion for a new trial.
Next, we conclude that the District Court properly instructed the jury that a foreign nation‘s consent to enforcement of United States law provided any time before trial satisfies the jurisdictional element of the MDLEA. We also hold that the fine imposed on Hutchins was not clearly erroneous and that the District Court did not err in concluding that the defendants were only managers or supervisors rather than leaders or organizers of criminal activity.
We find, however, that because the District Court‘s sentencing remarks are ambiguous, we are unable to determine from the record whether the court was required to state its reasons for the defendants’ sentences under
Accordingly, we affirm in part, vacate in part, and remand for clarification of the record and for resentencing.
BACKGROUND
This appeal arises out of an international drug smuggling and distribution conspiracy that spanned several decades and included the shipment of tons of hashish and marijuana to North America. The defendants, William Greer and Stephen Brent Hutchins, were prosecuted and convicted for their participation in that conspiracy. We recount only the events and circumstances that bear upon the parties’ claims and that provide essential context.
The evidence presented at trial, taken in the light most favorable to the government, showed the following. The conspiracy was organized and headed by Dutch and Canadian organizations, which shared in the profits and directed the operations. Greer and Hutchins were hired to assist in the smuggling ventures. From 1980 to 1993, Greer and Hutchins conspired to import and export thousands of pounds of hashish and marijuana across the Vermont Canada border. The defendants, and associates whom they oversaw, transported drugs using backpacks, snowmobiles, boats, all-terrain vehicles, and airplanes. From 1989 to 1991, the defendants also participated in or planned the offloads of many tons of hashish from vessels in the St. Lawrence River into Canada and the United States. In 1991, one such offload attempt went awry — barrels of hashish were discovered floating in the St. Lawrence River after bad weather and an equipment malfunction foiled the smugglers’ efforts — and the defendants were eventually arrested. Greer and Hutchins were prosecuted in Canada for drug offenses in connection with the failed offload.
In July 1996, a nine-count Superseding Indictment was filed against Greer and Hutchins in the United States, and the defendants went to trial in the District of Vermont in early 1997. At the close of trial, Greer and Hutchins were each convicted of one count of conspiring to import and export a controlled substance in violation of
DISCUSSION
I. The Jury Issues
Prior to jury selection, each venire person completed a jury questionnaire, which asked, inter alia, whether the potential juror, a relative, or a person close to that juror had ever been a victim of a crime, a witness to a crime, or accused of a crime. Prospective juror John Baker answered “no” to this question.
Then, prior to announcing the case to the jury panel, the District Court described the possible length of the trial and permitted those jurors with extraordinary personal circumstances and potential scheduling conflicts to address those issues individually in chambers. Neither the parties nor counsel were permitted to participate or observe. According to the court, this was standard procedure.
Defense counsel objected to their exclusion from the meetings. The court responded, however, that the purpose of the meetings was solely to discuss requests for excusal unrelated to the prospective jurors’ knowledge of the case. Defense counsel asked what the court would do if a prospective juror mentioned something about the case. The court responded, “[T]hat is not to be addressed at all. That person is to be sent back, and that will be addressed with lawyers. I‘m not going to say anything about this case.” The court also noted that a court reporter would be present, though the reporter would likely not have a transcript of the meetings prepared before jury selection.
The court then met with approximately 30 jurors individually in chambers. The following colloquy took place between the court and juror John Baker:
BAKER: Your Honor, good afternoon. When you extended the invitation to meet with you privately, I was under the impression that it would have been privately. What I wanted to discuss with you is critical.
THE COURT: What — to excuse you as a juror?
BAKER: I wasn‘t asking for an excusal.
THE COURT: Oh.
BAKER: But what I have to say is critical.
THE COURT: There is a record that has to be kept of any communication.
BAKER: I can repeat it later.
THE COURT: Yes.
BAKER: I have no problem with that. I want your opinion of something.
THE COURT: Well, why don‘t you just tell me the general subject matter of the —
BAKER: Well, I can‘t ask you what trial, what case, and I understand that, but I can tell you probably what the case is.
THE COURT: Well, this — the purpose of this hearing, though, is just to get into discussion about whether people have personal problems with the six weeks to two months [length of the trial].
BAKER: No. I have no problem and I am not trying to get out of the trial.
THE COURT: All right.
BAKER: I am just — I wanted to be afforded an opportunity to talk to you in private, to assure myself that I‘m not wasting my time, I am not wasting your time, going through the selection process, and then something comes out during trial that maybe I shouldn‘t have been a juror.
THE COURT: Okay. Well, let‘s take this step by step. If you have got no problems with the period of time, let‘s have you come back at one o‘clock and see if you are selected in the 35 jurors in the box there, and if you are, you will know — the nature of the case will be disclosed to you, and if you have any particular issues to resolve at that particular point, then we will take that step by step and you can bring that out.
BAKER: Fair enough.
THE COURT: All right?
BAKER: Thank you, sir.
THE COURT: Great. Thanks.
After the in camera discussions, the court informed counsel that during the interviews “nobody spoke about the case at all.”
At voir dire, Baker was the first juror questioned. The court asked the jurors, beginning with Baker, to name “the sources from which [they] have some exposure to the facts of this case.” The court explained that it wished to make sure that if a juror had “been exposed to some knowledge about this case, whether it‘s correct or incorrect, that that would not affect [his or her] judgment in any way.”
Baker responded that he had heard about the case through a newspaper called the “Free Press.” The court asked, “[I]s that strictly from the Free Press?“; Baker said yes. The court then asked Baker if he could nonetheless decide the case based only on the evidence elicited in court; Baker said yes. After questioning all the prospective jurors, the court again asked whether anyone “has been exposed to any kind of publicity or in fact has talked about this case with anyone else at all, who has not addressed that already[.]” No juror responded.
Later during voir dire, Baker raised some concerns about possibly knowing several potential witnesses. Baker also noted, in response to the court‘s question about whether any prospective juror had prior experience with law enforcement, that as part of his National Guard duty he had searched vehicles at the Canadian border. Baker assured the court that he could remain impartial, however, and he was not dismissed.
The court also asked the jurors: “Have you had any experience involving yourself, any members of your family, or any close friend that relates to the use or possession of illegal drugs or narcotics, within the past 10 years?” Juror Baker did not respond. Upon returning to court the next day, however, Baker said that he had recalled that his best friend had died as a result of drug and alcohol abuse.
After some members of the panel had been dismissed, the court seated and questioned new potential jurors. In the presence of juror Baker, one new prospective juror informed the court that he had been asked by a co-worker who knew one of the defendants to lend a “sympathetic ear” to the defendants. The court asked the juror if this incident would make it uncomfortable for him to sit on the jury and whether the co-worker imparted any facts of the case to him. The juror answered no, and the court moved on. The juror was not challenged for cause, but ultimately was not needed on the jury because all the seats were filled. Baker was selected as a juror.
As part of its case during trial, the government attempted to establish a pattern of drug distribution by Greer dating back to 1980. One witness who testified in this regard, Michael Johnson, described situations in which Greer distributed drugs to others. Johnson testified that Greer distributed drugs to a Robert Baker. Robert Baker‘s name came up more than once during Johnson‘s testimony.
Although juror John Baker did not reveal his relationship to Robert Baker during the trial, John Baker informed a news reporter after the trial that Robert Baker was his brother. The court then held a full evidentiary hearing to address this issue. At the post-trial hearing, John Baker testified that he was “surprised” to hear his brother‘s name during trial. He did not bring the relationship to the court‘s attention, however, because “it didn‘t have any impact” on him and because he believed that the relationship would not prevent him from being impartial. Baker testified that he mentioned his relationship with Robert Baker to at least two jurors, though he did not tell any juror that his brother was a drug user or purchaser. Baker also testified that he did not state during voir dire that his brother was involved with drugs because he did not know of any such involvement within the past ten years. The court then asked Baker if his relationship with his brother impacted his ability to be fair and impartial; Baker said no.
Baker acknowledged that his response on the jury questionnaire that no relative had been accused of a crime was inaccurate because his brother Robert had been convicted of a crime. Robert Baker had been incarcerated in 1969 and was jailed at least once after that. John Baker said that he did not reveal this on the jury questionnaire because he “didn‘t even give it a thought.” According to John, he and Robert did not regularly associate with one another. John acknowledged, however, that he and Robert attended a family function during the trial.
Baker then testified that when he met with the court in camera prior to jury selection and said that he “probably” knew what the case was, he was referring to the case against Greer. The “critical” information he wanted to disclose was that prior to jury selection he had been contacted2 by an old acquaintance who knew that Baker might serve as a juror for Greer‘s prosecution. The acquaintance said that Greer had not sent him, but that he was a “close friend” of Greer and wanted to make sure that there would be a “sympathetic ear” on the jury. Baker interpreted this contact as a bribe attempt. He responded that the contact was “inappropriate” and the offer “illegal.” He then told the individual that he “ought [to] kick his ass for even suggesting [a bribe], if that‘s what he was suggesting.”
According to Baker, he did not notify the court of the contact after the in camera meeting because, again, he believed that it would not affect his ability to be impartial. Moreover, after having seen that another juror was not immediately dismissed upon revealing a similar outside contact, Baker figured that “that solved [his] problem.” The court asked Baker if the outside contact had “any bearing on [his] ability to be fair and impartial[.]” Baker responded, “Obviously not.”
The court also interviewed the other jurors to determine whether they had been exposed to extrinsic evidence and to assess their ability to be fair and impartial. Five jurors recalled hearing John Baker mention his relationship to Robert Baker, and five jurors recalled that he described his contact from an outside source. One juror testified that John Baker told some jurors that Michael Johnson‘s testimony “should be thrown out.” Another juror testified that John Baker announced before many jurors that his brother Robert was involved in drug transactions with Greer. According to this juror‘s testimony, Baker told the jurors that “Robert Baker was his brother, and that he was involved in drugs, that he was in and out of jail most of his life, and that he had dealt with Bill Greer.” Baker, according to this juror, also told the jurors that the court was aware of the situation and had advised him that it “would cross that bridge when [it] came to it.” The District Court, however, found this juror‘s testimony “not ... persuasive.”
None of the other jurors reported hearing John Baker‘s statements about Robert‘s drug transactions with Greer, and six jurors said that they had not even heard that John and Robert Baker were brothers. All twelve jurors affirmed that nothing they heard had an impact on their ability to render a fair and impartial verdict.
The District Court denied the defendants’ motion for a new trial. The court found that the defendants had failed to satisfy either prong of the two-part test for a new trial based on juror misconduct set forth in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).
First, the court ruled that juror Baker did not fail to answer honestly a material question at voir dire, because Baker‘s incorrect answers were not made for an “illegitimate purpose” or with a “malicious design.” The court found that juror Baker‘s omissions or misstatements were either inadvertent or based on his belief that he could be impartial. Addressing the second prong of the McDonough test, the court found that correct answers to the voir dire questions would not have supported a challenge for cause. It found that Baker‘s ability to remain impartial was not affected by either the outside contact or his relationship with his brother.
The court also found that a hypothetical, average juror would not have been prejudiced by the extrinsic evidence brought in by Baker.
The defendants advance several challenges to the selection and conduct of the jury. We address those challenges in turn.
A. In Camera Questioning of Prospective Jurors for Hardship Excuses
The defendants assert that the District Court committed reversible error by excluding the parties and counsel from in camera meetings with the venire members relating to jury service hardship excuses. We disagree.
We have held, however, that routine administrative procedures relating to jury selection are not part of the true jury impanelment process in which parties and counsel have a right to participate. In United States v. Woodner, 317 F.2d 649, 651 (2d Cir.), cert. denied, 375 U.S. 903 (1963), we affirmed a conviction after the district court questioned potential jurors about hardship excuses at the bench in sight of, but outside the hearing of, the parties and counsel. The district court in that case also met with two jurors privately in chambers without a court reporter present to further discuss the jurors’ hardship reasons. We “fail[ed] to see the remotest possibility of prejudicial error in [that] procedure,” and refused “to presume that prejudice resulted in the absence of some plain showing to that effect.” Id. at 651-52. Rather, we emphasized our “confidence in the integrity and fairness of the District Judges to assume that they will not make unfair remarks to jurors while undertaking administrative duties of this nature.” Id. at 652.
Since Woodner, we have reaffirmed that hardship questioning is not a part of voir dire — and thus not a critical stage of the trial during which the parties and counsel must be present. In United States v. Williams, 927 F.2d 95 (2d Cir.), cert. denied, 502 U.S. 911 (1991), the defendant challenged the practice of the jury clerk, rather than the trial judge, excusing certain venire members on hardship grounds. We upheld the constitutionality of that practice, distinguishing such an “‘administrative impanelment process‘” from voir dire. Id. at 97 (quoting Gomez v. United States, 490 U.S. 858, 874 (1989) (distinguishing voir dire, which represents jurors’ “first introduction to the substantive factual and legal issues in a case,” from the “administrative impanelment process“)).
Similarly, in Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998), we labeled the in camera questioning of jurors to eliminate those who had been prejudiced by pretrial publicity “tedious, routine screening.” See also United States v. Candelaria-Silva, 166 F.3d 19, 31 (1st Cir. 1999) (“If a judge does no more than what a jury clerk is authorized to do in excusing jurors, that may raise an issue of allocation of court resources but does not raise an issue of impropriety.“), cert. denied, 529 U.S. 1055 (2000); United States v. Calaway, 524 F.2d 609, 615-16 (9th Cir. 1975) (affirming conviction after trial court questioned jurors about hardships in camera without parties, counsel, or reporter present), cert. denied, 424 U.S. 967 (1976).
The defendants’ reliance on United States v. Bordallo, 857 F.2d 519 (9th Cir. 1988), cert. denied, 493 U.S. 818 (1989), is misplaced. In Bordallo, the Ninth Circuit concluded that either the defendant or his counsel should have been present when the district court excused prospective jurors. See id. at 523. In Bordallo, however, it was clear that “the prospective jurors knew which specific case they would hear, and some were excused due to factors related to [the defendant‘s] particular cause.” Id. This, the Ninth Circuit held, made the situation more analogous to voir dire than to mere administrative impanelment. See id.
Here, the District Court questioned the prospective jurors prior to announcing the case. As was made clear to the parties, the process employed by the court was standard in Vermont. Accordingly, at least to the extent that the District Court addressed routine administrative matters with the jurors, we fail to see any error in its exclusion of the parties and counsel.
B. Failure to Take Action After Juror Revealed Information
The defendants argue next that the District Court committed reversible error by taking no action in response to juror Baker‘s in camera remarks. We disagree.
“The process of empaneling a jury is firmly entrusted to the sound discretion of the trial judge and will not be disturbed absent an abuse of this discretion.” United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994). To be sure, a judge who receives important information from a juror should promptly convey that information to the parties and counsel. See United States v. Aiello, 771 F.2d 621, 629 (2d Cir. 1985) (a judge who in a private meeting with juror learns of unauthorized outside communication “would be well advised” to hold a voir dire hearing “[u]nless the communication with the juror is patently innocuous“); United States v. Taylor, 562 F.2d 1345, 1366 (2d Cir.), cert. denied, 432 U.S. 909 (1977) (“There having been no informed consent to [private communications between judge and one juror during jury‘s deliberations], it was error for the court not to reveal the substance of these communications to counsel for both sides.“).
Juror Baker‘s in camera comments, however, could simply not have alerted the court to the nature or significance of Baker‘s concerns. The court met with approximately thirty jurors, and informed them all that the meetings were solely for the purpose of discussing hardship excuses. When Baker tried to raise other matters, the court told him — correctly — that he should address in open court any matters unrelated to excusal on hardship grounds. Just as it had told counsel it would do, once the court ascertained that Baker did not require an excusal, it ended the meeting and encouraged him to speak at voir dire. Baker, moreover, assured the court that he was satisfied with that solution.
Juror Baker‘s statements at voir dire, in turn, likely satisfied the court that Baker‘s concerns had been aired. Baker mentioned his familiarity with the case from the newspaper; his experience in the National Guard; the fact that his best friend had died from drug and alcohol abuse; and the fact that he knew several witnesses. These statements appear to have alleviated any concerns the court may have had about Baker‘s in camera comments. Nothing would have led a trial judge reasonably to suspect anything other than that Baker had disclosed what was on his mind.
Our decision is not inconsistent with Taylor, in which we held that it was error for the district court not to reveal the substance of its private communications with a juror. See 562 F.2d at 1366. In Taylor, unlike here, the communications occurred during the jury‘s deliberations, a stage of the trial in which private communications with a juror clearly violate the right to be present. Id. at 1365; see Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999) (“It is well recognized that jury deliberations constitute a critical stage of a criminal trial.” (internal quotation marks omitted)). We are unwilling to extend Taylor to the situation at bar, in which communications between a judge and a juror occurred during the administrative impanelment process.
Here, though the significance of juror Baker‘s concerns eventually became apparent, the information available to the court at the time of the administrative impanelment could not have led it to believe that the situation would not be resolved at voir dire. We cannot employ hindsight in judging whether the District Court exceeded its allowable discretion. See United States v. Sanchez, 790 F.2d 245, 251 (2d Cir.), cert. denied, 479 U.S. 989 (1986). Accordingly, we conclude that the District Court did not exceed its allowable discretion, given what it knew at the time, in deciding not to convey to the parties and counsel what Baker had mentioned.
C. Denial of a New Trial
We review the denial of a motion for a new trial for abuse of discretion. See Rivas v. Brattesani, 94 F.3d 802, 807 (2d Cir. 1996) (per curiam). “It is, of course, the rule that a motion for a new trial must be granted if the trial was not fair to the moving party.” Id. (citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). “One touchstone of a fair trial is an impartial trier of fact — ‘a jury capable and willing to decide the case solely on the evidence before it.‘” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)).
1. New Trial Based on Juror Misconduct
In McDonough, 464 U.S. at 556, the Supreme Court held that a party moving for a new trial based on juror nondisclosure or misstatements must satisfy a two-part test. First, the party must show that “a juror failed to answer honestly a material question on voir dire.” Id. Second, the party must show that “a correct response would have provided a valid basis for a challenge for cause.” Id. Both prongs must be met before a new trial may be obtained. See id.
In its Opinion and Order denying a new trial, the District Court focused on four instances of nondisclosure by juror Baker: his questionnaire response that no one in his family had been convicted of a crime; his failure at voir dire to disclose his outside contact with a third party; his failure to disclose his brother‘s drug use; and his failure to inform the court that Robert Baker is his brother. In their briefs to this Court, however, the defendants focus exclusively on Baker‘s failure to disclose his outside contact. Accordingly, we decline to address the other instances of nondisclosure. See United States v. Zichettello, 208 F.3d 72, 121 (2d Cir. 2000) (“Ordinarily, failure to include an argument in the appellate brief waives the argument on appeal.“), cert. denied, 531 U.S. 1143 (2001); Norton v. Sam‘s Club, 145 F.3d 114, 117 (2d Cir.) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.“), cert. denied, 525 U.S. 1001 (1998).3
Focusing solely on Baker‘s omissions and misstatements regarding his outside contact, we find it unnecessary to determine whether, under McDonough‘s prong one, Baker dishonestly answered questions at voir dire, because we hold that the District Court did not exceed its allowable discretion in finding that those omissions and misstatements did not satisfy McDonough‘s prong two. McDonough‘s second prong requires that a party moving for a new trial show that the correct answer to a question at voir dire would have provided a valid basis for a challenge for cause. See 464 U.S. at 556. The district court then must determine if it would have granted the hypothetical challenge. Cf. United States v. Shaoul, 41 F.3d 811, 816 (2d Cir. 1994) (noting that under second prong of McDonough, a defendant must have a basis for arguing that the district court is required to sustain his challenge for cause). We review this determination for abuse of discretion. Cf. Rivas, 94 F.3d at 807 (denial of new trial reviewed for abuse of discretion); United States v. Ploof, 464 F.2d 116, 118-19 n. 4 (2d Cir.) (district court‘s rulings on challenges for cause reviewed for abuse of discretion), cert. denied, 409 U.S. 952 (1972).
The District Court found — and we agree — that none of the grounds for a successful challenge for cause existed here. Challenges for cause are generally based on actual bias, implied bias, or inferable bias. See United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997), cert. denied, 523 U.S. 1065 (1998). Actual bias is bias in fact. See id. Implied bias, by contrast, is bias presumed as a matter of law. See id. at 45. Finally, inferred bias is available when actual or implied bias does not apply. See id. at 46-47. “Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.” id. at 47.
A district court‘s determination regarding actual bias is reviewed for abuse of discretion. See United States v. Morales, 185 F.3d 74, 84 (2d Cir. 1999), cert. denied, 529 U.S. 1010 (2000); United States v. Abrams, 137 F.3d 704, 708 (2d Cir.) (per curiam), cert. denied, 525 U.S. 821 (1998). “The district court, which ‘observ[es] the jury on a day to day basis ... is in the best position to sense the atmosphere of the courtroom as no appellate court can on a printed record.‘” Abrams, 137 F.3d at 708 (quoting United States v. Barnes, 604 F.2d 121, 144 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980)). Based on its evaluation of the testimony at trial and the post-trial evidentiary hearing, the District Court here found no actual bias. The court credited Baker‘s testimony and also noted that the outcome of the trial demonstrated that all the jurors, including Baker, fairly considered the evidence. The court found that Baker learned “nothing of substance” about the case from his conversation with a third party.4 We will not overturn such findings absent clear error, and we see no such error here. See Torres, 128 F.3d at 44 (“[A] finding of actual bias is based upon determinations of demeanor and credibility that are peculiarly within a trial judge‘s province.” (internal quotation marks omitted)); id. (“Given the special capacity of the trial judge to evaluate actual bias on the part of prospective jurors, that judge‘s determination in this regard is accorded great deference, since an appellate court [cannot] easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses.” (internal quotation marks omitted)).
It is unclear whether our affirmance of the District Court‘s findings regarding actual bias ends our inquiry, or whether a post-trial allegation of jury partiality may alternatively be proven by implied or inferred bias. See Smith, 455 U.S. at 215 (“[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.“). But see McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring) (noting that in exceptional circumstances, post-trial hearing could demonstrate inferred bias). We need not answer that question, however, for we agree with the District Court that neither implied nor inferred bias was present here.
Implied bias does not depend on “determinations of demeanor and credibility,” but rather is bias presumed as a matter of law. See Torres, 128 F.3d at 45 (“In contrast to the inquiry for actual bias, which focuses on whether the record at voir dire supports a finding that the juror was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.“). Drawing on Justice O‘Connor‘s admonition that implied bias should be reserved for “extreme situations,” Smith, 455 U.S. at 222 (O‘Connor, J., concurring), we have cautioned that “automatically presumed bias deals mainly with jurors who are related to the parties or who were victims of the alleged crime itself.” Torres, 128 F.3d at 45. On this basis, the District Court refused to find implied bias because it found the issues affecting juror Baker to be insufficiently “drastic.” Juror Baker was, after all, neither related to a party nor a victim of the defendants’ crimes. Accordingly, in light of our reminder to limit findings of implied bias to extreme situations, the District Court properly refused to find implied bias. See id. at 46 (“[T]he situations in which a trial judge must find implied bias are strictly limited and must be truly ‘exceptional’ . . .“).
Finally, a finding of inferred bias is, by definition, within the discretion of the trial court. As with actual bias, “the judge‘s determination [of inferred bias] must be grounded in facts developed at voir dire.” id. at 47. Thus, a district court‘s evaluation of the juror‘s impartiality is accorded deference. Here, the District Court refused to infer bias based on its assessment of the evidence. Because we see no error in the court‘s findings, we decline to overturn that ruling.
In short, we cannot say that the District Court erred in finding no bias that would have supported a challenge for cause. See Ploof, 464 F.2d at 118-19 n. 4 (“There are few aspects of a jury trial where we would be less inclined to disturb a trial judge‘s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury.“). Thus, we affirm the District Court‘s denial of defendants’ motion for a new trial based on juror misconduct.
Our holding does not conflict with this Court‘s decision in United States v. Colombo, 869 F.2d 149 (2d Cir. 1989) (”Colombo I“). In Colombo I, we held that deliberate lies by a juror — lies which reflected partiality on the juror‘s part — satisfied the McDonough test and warranted a new trial. Colombo I did not eliminate the second prong of the McDonough test. It simply held that a lie which simultaneously demonstrates both dishonesty and partiality on the part of the juror will satisfy both prongs of the test. That is, in Colombo I, it was not simply that the lies in question were deliberate, but that the deliberateness of the particular lies evidenced partiality. See id. at 151 (noting that juror‘s motive in lying was to prevent defense counsel from acting on information the juror believed might lead to her dismissal from the case). This case, however, can be distinguished from Colombo I, for the reasons articulated in United States v. Langford, 990 F.2d 65, 68-70 (2d Cir. 1993). In Langford, we held that Colombo I did not establish a per se rule requiring a new trial whenever an intentionally false answer is discovered. Rather, we emphasized that McDonough establishes a multi-part test in which a juror‘s dishonesty is among the “factors to be considered” in the ultimate determination of bias and that an analysis of bias is required even if the juror‘s erroneous response was deliberate. Here, as in Langford, we have made the ultimate determination of whether the juror was impartial and have found no bias that would have supported a challenge for cause under the second prong of McDonough. Accordingly, the present case, like Langford, is significantly different from Colombo I with respect to the determination of the juror‘s bias.
2. New Trial Based on Jury Exposure to Extrinsic Evidence
The defendants also claim that the extrinsic evidence brought in by juror Baker, i.e., the information regarding his outside contact and his relationship to Robert Baker, prejudiced the jury against them.5
It is well-settled that any extra-record information of which a juror becomes aware is presumed prejudicial. See Remmer v. United States, 347 U.S. 227, 229 (1954). A government showing that the information is harmless will overcome this presumption. See id. “Where an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror.” Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir.) (per curiam) (internal quotation marks omitted), cert. denied, 513 U.S. 901 (1994). A “trial court‘s post-verdict determination of extra-record prejudice must be an objective one,” focusing on the information‘s probable effect on a “hypothetical average juror.” United States v. Calbas, 821 F.2d 887, 896 n. 9 (2d Cir. 1987), cert. denied, 485 U.S. 937 (1988); see Bibbins, 21 F.3d at 17. The court may not inquire into “the degree upon which the extra-record information was used in deliberations and the impression which jurors actually had about it.” Calbas, 821 F.2d at 897 (citing
In the evidentiary hearing in this case, the District Court asked jurors whether the extra-record information impacted their ability to be fair and impartial. Because this was a post-verdict hearing, that line of questioning was improper. See Bibbins, 21 F.3d at 17 (under
Nonetheless, the District Court also concluded that the extrinsic information would not have affected a typical juror. After making an “independent determination” as to this issue, Bibbins, 21 F.3d at 17, we agree. The outside contact with John Baker presented no information that could have been improperly used in deliberations. No specific details about the case were revealed, and there was no indication that the defendants arranged the call. Similarly, Robert Baker‘s role in the trial was minimal, and his name arose during testimony which was provided to prove two counts on which the defendants were ultimately acquitted. See Calbas, 821 F.2d at 895 (finding no prejudice in part because the extrinsic information “bore most directly on the substantive count, upon which [defendant] was acquitted“). Moreover, as the District Court found, the jury‘s “complex verdict resulting in convictions on some counts and acquittals on others” demonstrated its fairness. See United States v. Aiello, 771 F.2d 621, 631 (2d Cir. 1985) (noting that jury‘s impartiality was demonstrated by the nature of its verdict and careful discrimination in weighing the evidence).
II. The MDLEA Instruction
The government has introduced evidence of ... a certification by a designee of the Secretary of State of the United States. This certification alone is sufficient evidence from which you may find that the government has proved beyond a reasonable doubt that the vessels ... were vessels subject to the jurisdiction of the United States.
III. Sentencing
I didn‘t want to double penalize Mr. Greer. Theoretically he could have been sentenced under [a base offense level of] 38 and essentially say that he should get credit [for time already served]. But I didn‘t think that was honest ... with the intention and purpose of the statute, and honest in regard to . . . the purpose of the guidelines. This is to penalize American conduct, and if there was a way to delineate American conduct, that‘s the way it‘s done. And that‘s the way I did it, and that‘s why [the base offense level] ended up at 36.A. The Defendants’ Sentencing Claims
1. Failure to State Reasons
2. Hutchins‘s Fine
3. Sentence for Currency Reporting Violation
B. The Government‘s Cross-Appeal
1. Drug Quantity Calculation
2. Role in the Offense
3. Obstruction of Justice
CONCLUSION
Notes
The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence — (1) is of the kind, and within the range, [established by the Sentencing Guidelines] and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or (2) is not of the kind, or is outside the range, [established by the Sentencing Guidelines], the specific reason for the imposition of a sentence different from that described.