*2 MORGAN, Before GOLDBERG and Cir Judges, WYZANSKI, cuit Senior Dis Judge.* trict WYZANSKI, Senior Judge: District Following government’s petition for rehearing, opin- we our herewith withdraw 22, 1977, judg- ion of December vacate our ment, opinion judg- and substitute this ment. from her Rangel appeals
Mary Rodriguez of a two-count on both counts convictions charged she was In count one indictment. heroin, in vio- to distribute conspiracy with United States Code § lation of of heroin with possession two with in count distribute, of in violation United intent 841(a)(1). Code § States re- convictions seeks to have her She court, over her because the trial both versed juror with an original replaced an objection, ascertaining the alternate without non-attend- original juror’s reason court refused and because the trial ance new trial based motions for a appellant’s prosecu- question by improper an upon tor. about, and facts first state the to, replace- respect
our conclusions jurors. original of the of one ment Thurs- began on Rodriguez The trial of 16,1976. approximately At September day, afternoon, September Friday m. on p. five jury for the excused the Greene, Philip S. Birnberg, Gerald M. return to the and directed it to weekend Houston, Tex., for defendant-appellant. afternoon, p. Monday at two courtroom m. Canales, Monday morning, 1976. it September J. A. U. Atty., Mary S. L. Sin- seems, that one derson, proven, is not of Kelt, Jr., clearly but George A. James R. * Massachusetts, sitting Judge by designation. Senior District District for the of used include bly “prejudice” as here Maxey, the clerk to jurors, Mr. called discharge any of a for want factual go chosen to work that say that he had support, legally or for irrelevant reason. court. The to come to day rather than upon There must be some “sound” basis court, this because he had informa- either which the trial exercised his discre- Maxey or he observed tion because tion. any absent, making further and without *3 Maxey an replace to with
inquiry proposed juror’s an A absence is observable strenuously ob- alternate. Defense counsel manifestly that fact. His to and insisted absence interferes jected procedure this with Hence Maxey prompt a for the trial of a case. court issue bench warrant the juror allow when a is absent from court for a at least defense that the court or period sufficiently long to interfere the facts for record develop the to counsel the of there dispatch reasonable business Defense juror’s the absence. surrounding may be a “sound” basis for his dismissal. concerned because particularly was counsel Domenech, United v. supra. States In Do man whom was a Black juror absent the menech the trial judge was sustained in thought might be defendant Hispanic the having discharged juror who ap did not a replace- to her than sympathetic more pear within 10 minutes of the opening of ment. day on the on which the judge was to objection. The court overruled the It did give charge. judge the The trial was left by effort to any telephone, not make reach undisturbed in his the determination that warrant, the by bench or otherwise absent delay juror’s caused out the absence formally first juror. discharging Without weighed other not judge factors. was juror, absent the the court substituted inquiries reversed because failed to he make out Maxey an alternate who turned to be juror’s absence, as to the cause of nor the White, Anglo-Saxon Protestant. the judge’s try because of failure to to juror by reach the or nor telephone capias, rule in this and other The settled hearing becaüse the failed to hold a is “the in his judge, that trial sound circuits or finding. make a formal discretion, may juror remove a and replace juror with an alternate whenever facts him This is nothing contrary to Dome presented which the trial are convince nech 24(c). in Fed.R.Crim.P. it is in And juror’s perform ability that the his deed implied that finding required no is impaired.” as a is duty juror United States when a becomes manifestly unable to Smith, 277, (5th 1977), 550 F.2d v. 285 Cir. perform duties, his rule for the expressly Cameron, 464 F.2d quoting United States v. that contemplates possibility. 333, (3rd 1972). 335 Acc. United Cir. States jurors “alternate in the order which in (5th Brown, 407, v. 555 F.2d 425-426 Cir. who, are called they replace jurors 1977); Jones, United States 534 F.2d v. prior to the time jury to con- retires 1344, (9th 1976); v. 1346 Cir. United States verdict, sider its become or are found to Domenech, (2nd 1232 476 F.2d Cir. be or disqualified perform unable their 1973); Ellenbogen, United States v. duties.” 1966); (2nd Cir. United F.2d States Zambito, (4th 1963). F.2d Cir. v. in not the facts that have overlooked an trial at bar was American
It has been said that “that court’s case defendant jur- ancestry, replaced not to of Hispanic exercise of this 'discretion is be dis- Black, the alternate bias or or was showing preju- turbed absent of Anglo- him defendant,” who was a White of (United replaced to the States v. dice is, course, Smith, ancestry. If, which not any party. or to Unit- Saxon supra) other replacement adversely affect- Ellenbagen, supra. provable, Presuma- ed v. States from preju- custody September ed defendant it was not the kind of in of 1976 a few days of the trial before the justifies dice our reversal time of Mary Rodriguez’s which trial. replacement in- Defense judge’s Every again discretion. counsel moved for a composition. change jury’s volves a in the mistrial. The trial court denied the motion. given to this weight How much should be Appellant contends that the prosecutor’s discretion is a matter for the sound factor question first on cross-examination was im- trial judge. of the proper because it alleged as a fact that appellant’s husband in custody under a Appellant’s other point that her sentence, 65-year when in fact he was in convictions should be reversed because the courtroom, (2) it was unjustified an District grant Court failed to her motions upon attack the credibility of appellant who for a new prosecutor trial when the on him, testified that she was living with put cross-examination an improper question (3) the District Court’s direction to jury to her. *4 disregard to question ineffective, the was With respect point to that these are the (4) and the question stricken prejudi- was facts. cial. examination, direct appellant On stated We have no doubt prosecutor’s that the at 9505 Avenue K with her she lived question grossly was improper. It as stated cross-examination, prose- husband. On the fact, not, a when it was that at the time of put question: cutor as his first trial the husband of appellant was prison. in see, Rodriguez, you “Miss let’s are thirty- But the question did not relate to a central K, years age, nine live at 9505 Avenue case, issue in the nor to appellant’s credibili- rear, Now, your in the husband. ty on such an issue. Moreover, the trial your isn’t it a fact that husband is now judge directed the jury not to consider the serving years Depart- at the Texas question. Our reading of the record as a ment of and that —” Corrections persuades whole us that the unanswered question played no part influential in the Defense immediately objected counsel to four-day trial where the appellant’s credi- question and moved for mistrial. bility was tested in many more important question
After the was by read back the and more memorable ways, such as her reporter, in presence the of the jury, repudiation of pre-trial her statements. the trial court sustained objection, the and jury instructed the disregard to the ques-
tion, but the request denied for a mistrial. In this circuit the rule is well-set point At that defense counsel stated that tled, in accordance with Kotteakos v. Unit appellant’s courtroom, husband inwas the States, 750, ed 764-765, 328 U.S. 66 S.Ct. requested permission to evi- introduce 1557, 90 L.Ed. that when an error is dence support to the motion for mistrial. not of magnitude, constitutional it is not a But the said that he take the ground for reversal if the error had no only evidence jury after the was excused. substantial influence and there was enough support to the result apart phase from the The next day, after the had affected the error. United States v. charged the jury, and it had retired to Rubin, (5th 1977); 559 F.2d Cir. verdict, consider prosecutor its the informed Constant, United States v. 501 F.2d the court that earlier that morning he had Cir., (5th 1974). (1) learned 65-year that: sentence im- posed upon Rodriguez, Richard defendant’s
husband, reversed; had been (2) later briefly state the more im 5-year sentence imposed upon portant Richard items support of evidence which Rodriguez, but that he had been resulting released convictions. 30,1975
On June Drug Enforcement Spe- him the favor of appellant driving to do cial Agent Larry Road, Carwell gave Dorothy Telephone with him to 6400 when Sutton to purchase heroin, an ounce of $850 there went to the they got appellant ladies’ and to telephone him where pick to it up. picked up restroom and 2 ounces of heroin Dorothy Street, Sutton went to 2620 Sabine (6) that wrapped newspaper, in Aldaco then went telephone to an outside place to appellant keep told the heroin and to call, and thereafter drove to 7165 Dillon in take it to him at Globe Store Street, the home of Guadalupe Navarro and minutes. Appellant produced two ounc- Jesse Aldaco. After being there 20 minutes purse. es of heroin had in her she she telephoned pick up Carwell to the drugs Although at her appellant trial recanted at the Globe Store. statement, her the statement itself was suf- ficient substantial evidence to support
Carwell sent con- government agents pick victions both of the substantive offense of up Dorothy They saw her leaving Sutton. possession of heroin and of the conspiracy driving Globe Store and in the direction charge. of Dillon They Street. found she had no drugs, but she told them that she given Judgment affirmed. money to Mexicans who were to deliver heroin, and that she was returning to GOLDBERG, Circuit Judge, dissenting: the Mexicans’ house to clear the up. matter With deference to Judge WYZANSKI’s heart, change of I continue origi- to find his agents Other appellant observed Rodri- *5 opinion, nal reported per- at 564 F.2d guez and a man named Aldaco leave 7165 suasive juror on the substitution of I issue. Dillon Street and drive to a service station agree that the decision to remove re- Telephone at 6400 Appellant Road. went place juror perform duty unable to his into a restroom for 10 seconds. Appellant one committed to sound discretion of and Aldaco went to an apartment near the judge. the trial I simply believe that on Globe where Store she remained for five case, facts of this in which the trial minutes. As she and two of her children judge denied strenuous efforts the de- Store, walked' toward the Globe she was fense to develop record, there was no arrested. basis for the exercise of the court’s discre- appropriate After warnings Miranda ap- tion. I cannot agree that the unexcused
pellant told the officers that she had heroin and possibly easy to remedy temporary ab- purse, in her and that she was doing Aldaco sence of a provides a sufficient basis by picking favor it up at the restroom at replaced, be particularly 6400 Telephone Road delivering it to when the objects defendant in strenuous him at the Globe Store. and timely fashion. Confident that expostulation further After being again legal informed of her my distinguished brethren yield no rights, writing, she waived them in productive result, I merely restate my abid- statement, made a which re- agents ing belief Judge WYZANSKI correctly writing, duced to signed. and which she expounded the law in his first opinion. significant parts of that statement (1) were that she several years had for
known that Aldaco and Navarro were her- dealers, (2)
oin girl she observed a named to the house
Dorothy come Dillon Street say
and heard her that she needed “some-
thing”, (3) appellant told that Dor- Navarro
othy given money, him Aldaco asked