United States v. Manuel Aguilar
743 F.3d 1144
8th Cir.
2014
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UNITED STATES оf America, Plaintiff-Appellee v. Manuel Maldonado AGUILAR, Defendant-Appellant.

No. 13-2845

United States Court of Appeals, Eighth Circuit

Feb. 26, 2014

743 F.3d 1144

Submitted: Jan. 17, 2014.

to consider whether Thomas should remain team leader or to consider union complaints made against Thomas. In fact, Sterk testified that he called the meeting solely to determine the facts of the alleged harassment on April 4th and that Malek‘s statements were outside that purpose.

Evеn assuming that the meeting was the proper occasion to bring up other incidents relating to Thomas‘s work behavior, Malek‘s failure to investigate any of the complaints prior to making his statements prevents such statements from being based upon reasonable or probable cause. The speaker asserting a privilege “must also have reasonable or probable grounds for believing in the validity of the statement.”

. “[A]n employer who takes no steps to investigate but relies entirely on accusations either made by employees who may be biased or on second-hand hearsay with no identification of sources, has not acted as a reasonably prudent person and lacks probable or reasonable grounds for making a potentially defamatory statement.”
. In the present case, Malek did not have any records of the complaints, all of the complaints were anonymous, and Malek did not investigate any of the complaints to see if they could be substantiated. Notably, Malek admitted in his deposition that he could not do anything about the complaints because under company policy, complaints are deemed not credible when anonymously made. Thus, Malek had no reason to believe in the truth of the complaints and, therefore, was not privileged to make any statements relating thereto.11

IV.

Because Thomas has satisfied all elements of his defamation claim for summary judgment purposes and Malek‘s statements were not privileged, the district court‘s grant of summary judgment was improper. We therefore reverse the grant of summary judgment and remand this case for further proceedings consistent with this opinion.

James Phillips, argued, of Little Rock, AR.

Benecia Betton Moore, AUSA, argued, Anne E. Gardner, AUSA, on the brief, of Little Rock, AR.

Before GRUENDER, BENTON, and KELLY, Circuit Judges.

BENTON, Circuit Judge.

Manuel Maldonado Aguilar (Maldonado) appeals his conviction for conspiracy to possess with intent to distribute methamphetamine, in violatiоn of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Having jurisdiction under 28 U.S.C. § 1291, this court remands.

I.

In August 2011, Arkansas police found meth inside the spare tire of Julio Rapan‘s Jeep Laredo. Rapan cooperated with law enforcement in a controlled delivery to Little Rock. There, Rapan met his contact in a Walgreens parking lot. (Maldonado drove the contact but remained in his car.) The contact entered the Jeep. Maldonado followed it to a restaurant. Rapan exited the Jeep, and the contact drove it to Maldonado‘s house. Maldonado followed.

Upon arrival, police arrested Maldonado and conducted a protective sweep of his house. He then signed a consent-to-search form. The search revealed $45,965 in cash, a .22-caliber revolver, scales with meth residue, and tools stuck between a tire and a rim.

Maldonado moved to exclude evidence from the search and to suppress statements to law enforcement. The district court denied the motion. A jury found Maldonado guilty. The district court sentenced him within-the-guidelines to 235 months’ imprisonment. Maldonado appeals, contesting the search of his home, the sufficiency of the evidence, and the presence of an alternate juror during deliberations.

II.

Reviewing the denial of a motion to suppress, this court views factual findings for clear error and legal conclusions de novo.

. This court “will affirm the district court‘s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of appliсable law, or, based on the entire record, it is clear a mistake was made.”
.

A.

Maldonado attacks the protective sweep as unreasonable and overbroad. He claims his entire home did not immediately adjoin the place of arrest (the front lawn), and the government presented no articulable facts suggesting the house harbored danger. See

(“A ‘protective sweep’ must be ‘a quick and limited search of premises ... conducted to protect the safety of police officers or others.’ “), quoting
.

Without a warrant, probable cause, or reasonable suspicion, officers may “look in closets ‍‌‌​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌​‌​‌​‌​‌​‌​‌​‌‍and other spaces immediately adjoining the place of arrest” to ensure officer safety.

. Beyond that, “there must be articulable facts which, taken togеther with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

Law enforcement did not find evidence during the protective sweep. More importantly, Maldonado did not contest the protective sweep in his motion to suрpress. This argument is waived.

(“[T]he mere filing of a motion is not sufficient to avoid waiver of specific arguments that are advanced for the first time on appeal. The Rule 12 waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.“) (internal quotation marks omitted).

B.

Maldonado chаllenges the warrantless search following the protective sweep, claiming his consent was not “freely and voluntar[ily] given.” He alleges: English is not his first language, he has limited education, he was in custody, not advised of his right to refuse, not read his Miranda rights, and agents threatened to deport his family. He also argues that he acquiesced, but did not consent, because he believed officers would сontinue searching even without his permission.

“The government bears the burden to prove by a preponderance of the evidence that consent to search was freely given.”

. “Whether an individual‘s consent is voluntary is a question of fact that must be determined from the totality of the circumstances,”
, including “characteristics of the accused and details of the interrogation.”
. “[W]hether or not the suspect has actually consented to a search, the Fourth Amendment requires only that the police reasonably believe the search to be consensual.”
. See
(“The precise question is not whether Jones consented subjectively, but whether his conduct would have caused a reasonable person to believe that he consented.“).

Unrestrained, sitting at his kitchen table, Maldonado signed a consent-to-search form (in Spanish, his native language). During the search, he did not object or seek to withdraw consent. There is no objective evidence that he was threatened or coerced. See

(listing factors to determine voluntariness, stating that a Miranda warning and awareness of the right to refuse are not required for voluntary consent). As the district court ruled, even if Maldonado acquiesced because he thought thе search was inevitable, the key is whether the police reasonably believed he consented. See
. The district court did not err in denying the motion to suppress. See
(finding valid consent where the defendant was not impaired, threatened, or coerced; signed a Spanish consent form; and raised no objection during the search).

III.

Maldonado attacks the sufficiency оf the evidence for his conspiracy conviction. He also asserts that the government argued a lower standard of a proof than “beyond a reasonable doubt” by asking the jury to consider what a reasonable person would do.

This court reviews “challenges to the sufficiency of the evidence de novo, viewing the facts in the light most favorable to the verdict, ‍‌‌​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌​‌​‌​‌​‌​‌​‌​‌‍resolving any evidentiary conflicts in favor of the prosecution, and accepting all reasonable inferences that support the verdict.”

. This court upholds a verdict if it finds that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.
.

To prove conspiracy, the government must show: (1) there was a conspiracy; (2) Maldonado knew of the cоnspiracy; and (3) he intentionally joined it.

. “The conspiracy‘s existence may be proved by direct or circumstantial evidence.”
, citing
.

The evidence was: (1) police found meth in the spare tire of Rapan‘s Jeep; (2) they saw scratch marks on the tire rim; (3) Rapan cooperated, transporting the meth to Little Rock; (4) Rapan arranged to meet his contact at Wаlgreens; (5) the contact arrived with Maldonado; (6) the contact entered Rapan‘s Jeep and drove him to a restaurant; (7) Maldonado followed; (8) Rapan exited the Jeep, and the contact drove it to Maldonado‘s house; (9) Maldonado followed an almost identical route to his house; (10) Maldonado exited his car; (11) law enforcement arrested him; (12) they sеarched his house, revealing a set of digital scales with meth residue, $45,965 in cash, a .22 revolver, and tools sticking out from between a tire and a rim.

Based on this evidence, a reasonable jury could find Maldonado guilty beyond a reasonable doubt. His assertion that the government argued a lower standard of proof is baseless.

IV.

The parties—and the district court—agree that the alternate‘s presence during jury deliberations violated Federal Rule of Criminal Procedure 24(c)(3): “The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury tо begin its deliberations anew.” See

(the “presence of alternate jurors during jury deliberations is no doubt a deviation from Rule 24(c)“).

Maldonado did not object at trial. No one noticed the error until the government filed a “Notice of Error in Proceedings” the day after the verdict. This court reviews for plain error. Fed.R.Crim.P. 52 (“A plain error that affects substantial rights may be considered even though it was not brought to the court‘s attention.“). Maldonado bears the burden to show that the error was prejudicial.

(“The presence of alternate jurors during jury deliberations is not the kind of error that ‘affects substantial rights’ independent of its prejudicial impact.... [I]f no harm resulted from this intrusion [of an alternate juror into the jury room] reversal would be pointless.“). The government maintains Maldonado fails to show prejudice.

In

, the Supreme Court addressed Rule 24(c) violations, framing thе “ultimate inquiry” on prejudice: “Did the intrusion affect the jury‘s deliberations and thereby its verdict?” The Court said:

In theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through “body language“; or because the alternates’ presencе exerted a “chilling” effect on the regular jurors. Conversely, “if the alternate in fact abided by the court‘s instructions to remain orally silent and not to otherwise indicate his views or attitude ... and if the presence of the alternate did not operate as a restraint upon the regular jurors’ freedom of expression and action, we see little substantive difference betweеn the presence of [the alternate] and the presence in the juryroom of an unexamined book which had not been admitted into evidence.”

(emphasis added), quoting
.

Interpreting

, three circuits have held that a defendant is prejudiced by an alternate‘s actual participation in deliberations. See
(“[E]vidence that an alternate juror participated in jury deliberations is sufficient to demonstrate prejudice.“);
(“The Supreme Court has held that the mere presence of an alternate in the jury room during deliberations is not inherently prejudicial to the defendant. The Court, ‍‌‌​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌​‌​‌​‌​‌​‌​‌​‌‍however, implied that once the alternate participates in any way—whether through words or gestures—prejudice is manifest.“) (internal citations omitted);1
(“Olano indicates that the substantive participation of alternates, once established, is sufficient to establish prejudice.“). This court similarly holds that a defendant is prejudiced when an alternate “actually participate[s] in the deliberations” or “exert[s] a ‘chilling’ effect on the regular jurors.”
. See also
(“[S]ufficient prejudice and effect on the jury‘s verdict would be shown and, therefore, a new trial required if the alternate disobeyеd the court‘s instructions and in any way participated in the jury deliberations, or if any regular juror was deterred in the free exercise of his independence of thought, expression, or action by the mere presence of a non-participating alternate during deliberations.“) (emphasis added).

The Eighth Circuit addressed Rule 24(c) violations in

, which the government argues controls here.
. In
, the district court inadvertently allowed an alternate to deliberate for twо-and-a-half hours.
. Before the verdict, the court removed the alternate and al-lowed the jury to continue deliberating. This court held:

Allowing an alternate to deliberate with the jury panel is an obvious error. We may not, however, presume that the alternate‘s presence prejudiced the defendant, and Hill has made no affirmative showing that he was prejudiced by the district court‘s error. In these circumstances, the district court did not err in not ordering a new trial sua sponte.

(internal citations omitted).

is distinguishable. In
, there was no evidence of actual participation. This court—describing the alternate‘s role with the word “deliberate,” not “participate“—held that Hill failed to make an affirmative showing beyond mere presence.
(may not presume that the alternate‘s presence prejudiced defendant). Here, Maldоnado‘s counsel reported contacting two jurors (with the court‘s permission), who said that the alternate actually participated in deliberations by asking and answering questions, but did not vote. The government and the district court repeated these assertions. Unlike
, Maldonado makes a showing beyond mere presence.

In light of this difference, Maldonado could meet his burden of proving prejudice. The district court and the parties appear to believe Maldonado‘s assertion about the alternate‘s participation, but the court did not hold a hearing or make findings of fact.

This court remands for factual findings about the alternate‘s actual participation. See Fed.R.Evid. 606(b) (“During an Inquiry Into the Validity of a Verdict or Indictment ... [a] juror may testify about whether ... an outside influence was improperly brought to bear on аny juror.“);

(“[I]f a party shows that outside contact with the jury presents a reasonable possibility of prejudice to the verdict, he is entitled to a hearing on the matter.“), citing
;
(“The alternate‘s presence in the jury room after the jury retired to deliberate was undeniably an intrusion into the sanctity of the jury.... The only way to determine whether the alternate in fact participated or affected the verdict is through conducting the evidentiary hearing prescribed by
.... We recognize that the hearing itself represents an intrusion into the privacy of the jury. Under circumstances such as this we believe a hearing limited to a determination of whether the alternate‘s presence could have affected the verdict is justified.“);
(remanding for an evidentiary hearing to determinе “whether the alternate participated in any way in the deliberations; whether he took part in any votes of the jury; whether he indicated his views regarding any of the defendants in any way—orally or otherwise; and whether the mere presence of the alternate restrained any of the regular jurors in expressing his views or in exercising his independence of thought and action“). See also
(discussing alternate participation in the context of “outside intrusions” but declining to decide whether testimony about juror participation violates Rule 606(b) or whether courts of appeal have authority to remand for Remmer-like hearings on plain-error review);
(noting that “it is impossible for the alternate to have ‍‌‌​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌​‌​‌​‌​‌​‌​‌​‌‍been an ‘outsider’ until the deliberations started“).

This case is remanded for the limited purpose of inquiry about the alternate‘s actual participation. This court retаins jurisdiction during this limited remand.

Andrew SASSER, Petitioner-Appellant v. Ray HOBBS, Director, Arkansas Department of Corrections, Respondent-Appellee. Andrew Sasser, Petitioner-Appellant v. Ray Hobbs, Director, Arkansas Department of Corrections, Respondent-Appellee.

Nos. 02-3103, 11-3346

United States Court of Appeals, Eighth Circuit

Feb. 26, 2014

743 F.3d 1151

Submitted: Dec. 13, 2013.

Scott Braden, Assistant, Deborah Anne Czuba, Federal Public Defender‘s Office, Little Rock, AR, for Petitioner-Appellant.

Andrew Sasser, Grady, AR, pro se.

Kelly Hook Fields, Attorney General‘s Office, Little Rock, AR, for Respondent-Appellee.

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

RILEY, Chief Judge.

The State of Arkansas‘s petition for panel rehearing is predicated on a misreading of our opinion and a mischaracterization of the record. It should be clear the district court, on remand, must consider whether “[Andrew] Sasser‘s state postconvictiоn counsel fail[ed] to raise the[] four [potentially meritorious] ineffectiveness claims.”

. It should equally be clear that Sasser‘s “postconviction counsel‘s alleged ineffectiveness” will excuse procedural default only “if proved.”
(emphasis added). Far from determining Sasser has affirmatively overcome the procedural bar, our opinion recognizes we cannot presently determine whether these four claims remain procedurally barred in light of
.

Our opinion therefore vacates the procedural default determination and remands for the district court to decide the two-part Trevino question in the first instance, after giving Sasser an opportunity to present evidence in support of his argument the four claims are no longer prоcedurally barred. This hearing will necessarily address the underlying merits of the four claims because, unless postconviction counsel‘s failure to raise a claim was prejudicial, the claim remains procedurally barred despite Trevino. See

. On remand, the State is free to argue Sasser‘s postconviction counsel fully raised the four claims, see
, just as Sasser is free (1) to argue the State forfeited this argument or is estopped from relying upon it, and (2) to show substantial and decisive factual differences between these four claims and the purportedly similar postconviction claims emphasized by the State.

Because we do not consider it appropriate in this capital case to decide such fact-intensive questions for the first time on apрeal, we remand.

WILLIAM JAY RILEY

CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Notes

1
It should be noted that
held that prejudice from the alternate‘s participation can be eliminated when an alternate is removed and the jury is properly instructed.
.
11
Having determined that no qualified privilege exists protecting Malek‘s statements, we need not decide whether the district court erred in determining that Thomas failed ‍‌‌​​​​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌​‌​‌​‌​‌​‌​‌​‌‍to show actual malice. A plaintiff need only show actual malice once the defendant has established that the statements were entitled to a qualified privilege. See
.
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