United States v. NelsonUnited States v. Nelson
COUNSEL
ARGUED: Larry Allen Nathans, Baltimore, Maryland, for Appellant. Jan Paul Miller, Assistant United States Attorney, Greenbelt, Maryland, for Appellеe. ON BRIEF: Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.
NIEMEYER, Circuit Judge:
In connection with his cocaine conspiracy conviction, James Kevin Nelson contends that the district court erred (1) in refusing to suppress $43,000 seized from his shoulder bag when he was arrested, (2) in failing at any time during his four-day trial to instruct jurors to refrain from discussing the case with others, and (3) in replаcing two jurors who had holiday travel plans beginning on what would have been the fifth day of trial. While we find that the district court erred in failing to instruct jurors to refrain from discussing the case, the error in the circumstances of this case does not require us to order a new trial, and we find no merit in the other assignments of error. We therefore affirm.
I
After his arrest, Omar Grajales, who was а cocaine supplier to the defendant Nelson, agreed to cooperate with agents of the Drug Enforcement Administration (DEA). With Grajales’ cooperation, DEA agents arrested Nelson when Nelson came to Grajales’ apartment to pick up two kilograms of cocaine. At the time of his arrest, Nelson was carrying a black shoulder bag.
While Nelson stood with his hands on his head, DEA agents attempted to check the bag. But because Nelson‘s hands were on his head, they could not remove the bag which was slung over his shoulder. Unzipping the bag, the agents noticed that it contained money. At that point, the agents lowered Nelson‘s hands, removed the bag from his shoulder, and took Nelson to an upstairs room for questioning. Within minutes, a DEA agent searched the bag and found $43,000, the approximate street price of two kilograms of cocaine and $1,000 less than the amount which Nelson had earlier agreed to pay Grajales.
After being advised of his Miranda rights, Nelson confessed to the agents that he had come to Grajales’ apartment to purchase two kilograms of cocaine and thаt he had purchased a kilogram approximately
Nelson filed a pretrial motion to suppress the $43,000 which was seized from his shoulder bag. After a hearing, the district court denied the motion and allowed the government at trial to intrоduce evidence of the $43,000 seizure. Nelson now contends that the district court‘s ruling violated his
To protect the safety of arresting officers and to avoid the destruction of evidence, the Supreme Court has long recognized an exception to the
Nelson contends that in this case the incident-to-arrest exception does not apply because the risks of danger and destruction of evidence had passed. He argues:
The search of the bag was not contemporaneous with Mr. Nelson‘s arrest, was not conducted when Mr. Nelson was within the same part of the house as the search, was not searched within the same room in which it was seized and was performed when Mr. Nelson was already handcuffed.
While the need for the incident-to-arrest exception is indeed grounded on the need to protect law enforcement officers and evidence, the validity of such a search does not end at the instant the risks justifying the search come to аn end. Even though the warrant exception is well grounded on the existence of exigent risks attending arrest, the pragmatic necessity of not invalidating such a search the instant the risks pass is well accepted. See, e.g., Belton, 453 U.S. at 462 n.5 (“[U]nder this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee‘s person, an officer may be said to have reduced that article to his `exclusive control‘“). Just as arresting officers need not determine that the defendant actually have a gun or actually intend to destroy evidence before conducting a search incident to arrest, they need not reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that would link the validity of the search to the duration of the risks. Pragmatic necessity requires that we uphold the validity and reasonableness of a search incident to arrest if the search is part of the specific law enforcement operation during which the search occurs. And we so held in Han.
In this case, agents arrested Nelson in the front room of an apartment. During the course of that operation they removed his shoulder bag, took him to a separate upstairs bedroom for questioning, and searched the bag -- all within a few minutes. The district court did not err in denying Nelson‘s motion to suppress the fruits of this search.
II
Nelson next contends that he should be afforded a new trial bеcause the district court failed to instruct jurors at any time during
While the district court did admonish the jury in its final instructions that “anything that you may have seen or heard about this case outside the courtroom is, of course, not evidence and must be entirely disregarded,” our review of the record and the government‘s concession confirms that at no time did the district court provide the jurors with a proper instruction about discussing the case with others. It is also apparent that Nelson did not request such an instruction, nor did he object to the court‘s failure to instruct the jury about their conduct. Moreover, we have been made aware of no evidence that any juror discussed this case with anyone outside of the courtroom or with other jurors before deliberation.
To assure that jurors properly carry out their role as factfinders in a trial, the trial judge must instruct them on the nature of their task, its limitations, and proper conduct while serving as jurors. It is accordingly customary to advise jurors at the beginning of trial that they are the factfinders, that they will apply those facts to the law given to them by the court, and that they are to find those facts solely from evidence presented to them in the courtroom. And to assure that the jury‘s verdict is rendered solely on the facts presented in the court and from dеliberation of only the jurors sworn to hear the case, the jury must be instructed in substance:
I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case.
In this case no such prophylactic instruction was given. While Nelson argues for the first time on appeal that he should receive a new trial because of its omission, he forfeited the error at trial by not raising it. And rather than arguing now that prejudice resulted, he maintains that the error was fundamental and that he is entitled to a new trial without demonstrating any prejudice, referring us to United States v. Williams, 635 F.2d 744, 745-46 (8th Cir. 1980).
In this case, Nelson argues that prejudice must be presumed because the error was of a category that deprives the defendant of basic protections without which “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
We cannot agree that the error in this case was so fundamental as to require a new trial regardless of the error‘s effect. The rule requiring district courts to instruct jurors is a prophylactic measure. If a prophylactic instruction is not given but the harm that it was designed to forestall never occurs, it would be pointless to order a new trial simply to have the instruction given. This conclusion is consistent with the analogous holding by the Supreme Court in Olano, where the Court found harmless the error of allowing an alternate juror to be present with the jury during deliberations. In refusing to require a new trial in that circumstance, the Supreme Court noted: “If no harm resulted from this intrusion of an alternate juror into the jury room, reversal would be pointless.” Olano, 507 U.S. at 738 (quoting United States v. Watson, 669 F.2d 1374, 1391 (11th Cir. 1982)).
While our conclusion may be at odds with the Eighth Circuit‘s holding in Williams, we note that the Eighth Circuit decided that case before the Supreme Court‘s decision in Olano. In concluding that the error in failing to instruct the jury about discussions outside the court should be reviewed for prejudicial impact, we join the Seventh and Fifth Circuits. See United States v. Davis, 15 F.3d 1393, 1410 (7th Cir.), cert. denied, 115 S. Ct. 250 (1994); Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968).
Since Nelson has failed to carry his burden of persuading us that the district court‘s error was prejudicial, we conclude that the district court‘s error in failing to instruct the jury about its conduct during trial was harmless.
III
Finally, Nelson contends that the district court abused its discretion in dismissing two jurors during trial because their travel plans potentially conflicted with jury deliberations. He contends that the district court “had no evidence before it which justified the dismissal of two African American jurors without some investigation into possible alternatives.”
On the morning of the fourth day of trial, Thursday, December 22, 1994, the district court received notes from two jurors that they had holiday travel plans beginning the next day, Friday, December 23. Concerned that the jurors would feel pressure to render a verdict quickly, the court solicited views from the parties on whether to replace the two jurors with alternates. While the government attorney agreed to substitute the alternates, counsel for the defendant expressed the preference that the jury remain as constituted. The defendant suggested that the jury be allowed to separate during the few days that thе two jurors were traveling and resume the case on December 29. The court expressed its preference, however, to have the jury deliberate on consecutive days, if possible. Noting that both of the jurors concerned were black and expressing its sensitivity to the racial composition of the jury, the court determined that it would be prudent to sрeak with both jurors about their travel plans before making its decision.
The first juror informed the court that she and her husband would be leaving at the end of the day on December 23 to take a long-planned yearly trip to Virginia and North Carolina and that they would be gone from December 23 through December 28. The second juror informed the court that he had an airline tiсket to leave for Atlanta the next day and would need to leave at about noon. He stated that he would return December 27. The court concluded that to keep the jurors on the case would place pressure on them to reach a verdict in time to meet their travel plans and accordingly replaced them with
The jury as reconstituted with the two alternate jurors began its deliberations on December 22 and later that afternoon reached a guilty verdict.
Nelson contends that (1) the court did not have adequate information to reach the conclusion that the jury would feel rushed to rеach a verdict and (2) even if there were such evidence, that the court failed, particularly in light of the race of the two jurors, to explore reasonable alternatives before substituting alternate jurors.
A defendant has a reasonable expectation that, barring unforeseen circumstances, he will be tried by the jury selected. The trial judge is not at liberty to interfere with the jury selected unless it has adequate cause.
In this case the district court was presented with facts during trial indicating that two jurors would be required to depart on holiday trаvel during the next day. With reasonable foresight, the court concluded that the jury, confronted with that type of schedule, might be influenced by the pressure of completing deliberations and reaching a verdict before it became time for two jurors to leave. While it is undoubtedly true that the court could have considered other alternatives to further the impоrtant goal of keeping the original jury
Nelson suggested first that two alternate jurors deliberate with the jury and be impaneled as regular jurors only as it might become necessary. The district court rejected that alternative because it was contrary to
While we reaffirm the importance of keeping the originally selected jury togethеr, that right to have the selected jury render the verdict is not absolute and is subject to the inevitable vagaries of the many trial participants’ complex lives. In the circumstances of this case, we cannot conclude that the district court abused its discretion.
Nelson argues that the court‘s standard for replacing juries should be heightened in the circumstanсes of this case because two black jurors were being replaced with two white jurors. Nelson makes no claim, however, that the court acted in any respect because of the race of either the replaced jurors or the alternate jurors. Although the trial court candidly said that it was “sensitive to the issue,” it correctly noted that “no defendant has any entitlement to a jury composed of individuals from any given race.” Cf. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986) (holding that while a defendant has no right to a jury composed of persons of his own race, he does have a right to a jury selected without racial discrimination). It was only coincidence that two jurors having travel plans happened to be black and that the next two alternates were white. In the absence of any evidence or allegation that the court acted because of race in replacing jurors with alternates, we find no basis to conclude that the court‘s discretion should
For the reasons given, we accordingly affirm the judgment of the district court.
AFFIRMED