*3 STAHL, Before SELYA and Circuit SKINNER,* Judges, Judge. and District SKINNER, Judge. District appeals These are from convictions on as- charges conspiracy, importing sorted marijuana possessing large quantities of cocaine, and, aiding abetting therein Vazquez, possession case Medina of a drug charges. firearm in connection with the together These defendants were tried part others. two This trial was of the serial prosecution large of a some members drug importation orga- scale and distribution nization known as “La Nena.” their nu- Of error, merous assertions of the most serious is the denial of their motions for a mistrial discovery by the court that four of the concerning had arrived at a conclusion guilt prior presentation of the defen- dants’ evidence. our We reserve discussion of this difficult until last. issue Sufficiency evidence. challenge All defendants the suffi ciency against of the evidence them because government’s depended case on the testi (“Portala mony of Geraldo Portalatin Toledo tin”), leading of the “La Nena” member drug organization. argue Defendants Miami, FL, Burstyn, argued Samuel I. testimony Portalatin’s was so unreliable and briefed, defendant-appellant for Ortiz-Cam- them, sketchy so as to that it was insufficient eron. as a matter of law. Portalatin was cross- Rivera, Juan, PR, Jose R. Franco Old San concerning gov examined his deals with the argued, judge gave complete defendant-appellant Ortiz-Arri- ernment. The and eor- * Massachusetts, sitting by desig- Of the District of nation. detailing special appear any suggestive care It
rect
instructions
does
com-
assessing
picture
the testimo ment was made. This
part
should take
was not
spread,
accomplice.
and it was
ny of an
Under these circum
shown to
stances,
Portalatin in
accomplice
qualified
is a
witness
the course of the discussion of
participation in
drug
the various
credibility of the witness is for the
transac-
tions.
jury.
Restrepo-Contreras,
United States
(it
(1st Cir.1991)
prov
Defense counsel moved that Portalatin’s
credibility
to assess the
of a
ince of
testimony concerning Ortiz Cameron be
—
denied,
-,
witness),
cert.
U.S.
unacceptably
Among
stricken as
tainted.
(1992).
955,
vory history
pre
evidence
apparently accepted
prosecution’s
but
ex-
by
sented
the defendants.
trial,
planation.
suspend
He offered to
provide
op-
defense counsel an
Improper
testimony.
admission
portunity
photo
to examine the
and to devel-
op any
improper suggestion.
evidence of
Ortiz Cameron further asserts error
proceeded
with the
Counsel declined
in the admission of evidence. Portalatin tes
cross-examination of Portalatin. Not until
“power
tified that the driver of a Chevrolet
later,
days
eight
at the close of all the evi-
truck)
wagon” (apparently a four-wheel-drive
dence, did counsel move for a voir dire of
cargo
which was used
remove the
of co
explore any possible
Portalatin to
taint. This
incoming plane
caine after
crashed at
untimely motion was denied.
“Hiram,”
Furnia was
whom he identified as
Cameron,
Luis Hiram Ortiz
the defendant.
reliability of identification testi
plane
Portalatin
in the
had been
which mony allegedly
by
an im-
tainted
reason of
crashed,
head,
bumped
pulled
had
his
had
permissibly suggestive photograph should be
pilot
plane
out of the
and had described
resolved after consideration of all the circum
by
experience.
“shaken”
himself as
Ortiz
Brathwaite,
stances. Manson v.
432 U.S.
argues
Cameron
that Portalatin’s condition
2243, 2252-53,
113-14,
L.Ed.2d
53
testimony
made him so unreliable that his
Bouthot,
(1977);
United States v.
should not have been allowed. There is no
Cir.1989).
(1st
F.2d
evidence, however,
any way
that he was in
spent
appear
it would
that Portalatin had
incapacitated.
pulled
pilot
He
company
in the close
of “Hir
over two hours
plane
salvage
cargo.
helped
He then
am,”
night and under difficult cir
albeit at
spent two hours beside “Hiram” as the latter
He
Hiram’s first name
cumstances.
knew
“power wagon”
drove the
to the destination
photograph
before the
was identified.
of the contraband. Under such circum
judge’s
suspend the
The district
offer to
stances,
credibility
jury.
his
was for the
investigation
permit
further
was re-
trial
During
doubtless entitled
the cross-examination of Por-
fused. The defendant was
talatin,
be-
attorney
the defense
discovered for
to a voir dire examination
Portalatin
cross-examination,
Portalatin, during
proceeding with the
the first time that
his de
fore
by
certainly
eight days
There
briefing
government agents,
later.
was shown
untimely
picture
immediately
error in the
of his
of Ortiz Cameron. He
was no
denial
picture, saying
Similarly, we find no error
identified the
“That’s Hiram.” motion.
Rafael
Cameron called
the defendant Ortiz
permit Portalatin’s
judge’s
trial
decision
Tormes,
of the same
a convicted member
to stand.
identification
stand,
conspiracy,
a witness. On the
drug
alleges error in
Cameron
Ortiz
had
testified that Ortiz Cameron
Tormes
testimony concerning his
the admission
unloading.
Furnia
nothing to with the La
do
normal whereabouts
from his
disappearance
any way
incriminate Ortiz
He did not
episode
Furnia”
the “La
immediately after
Vazquez.
Arrigoitia Medina
No inconsis
wealth,
govern
which the
concerning his
presented. All that oc
defense was
tent
by
only
explained
his
be
could
ment asserted
on cross-examination
curred was
peri
drug deals over
participation in illicit
of the details of
Tormes corroborated some
ample oppor
od of time. The defendant
prejudice
testimony.
Portalatin’s
testimony.
It is well
tunity to rebut such
Arrigoitia and Medina
claimed
Ortiz
flight
unexplained
or a de
established
doing
bolstered
Vazquez is that
so
Tormes
identity may
attempt to conceal
fendant’s
credibility
to their detri
of Portalatin
See, e.g.,
guilt.
Unit
relevant evidence
offered no au
The defendants have
ment.
Grandmont,
867, 869
ed States v.
proposition
thority
support
of the dubious
Cir.1982).
Similarly,
of the ac
evidence
mistrial,
to a
and we
that this entitles them
unexplained wealth
quisition of otherwise
*5
Angi
v.
have found none. See United States
partic
evidence of
corroborate other
(1st Cir.1990)
ulo,
1169,
897 F.2d
1194-95
v.
ipation in lucrative crimes. United States
defense
(finding withdrawal/noninvolvement
(1st
Ariza-Ibarra,
1216, 1224-25
605 F.2d
insufficiently antagonistic
require
sever
denied,
895,
Cir.1979),
454
102
cert.
U.S.
Pacheco,
ance);
v. Luciano
United States
(1981).
392,
L.Ed.2d 209
S.Ct.
70
(1st Cir.1986)
7,
(explaining
8-10
794 F.2d
antagonism
go
degree of
must
be
that the
3. Severance.
realm
yond
finger pointing
mere
into the
All
defendants moved before
three
disagreement over core and ba
fundamental
ground
that there
trial for a severance on
Talavera,
facts);
v.
668
sic
United States
prejudicial “spill-over” of evidence
would
(1st Cir.)
625,
(concluding that an
F.2d
630
a motion is
to the other. Such
from one
per
require
do not
se
tagonistic defenses
discretion of the trial
addressed to the sound
severance,
are hostile
even
the defendants
Natanel,
judge.
v.
938 F.2d
United States
other),
each
cert.
attempt to cast blame on
—
(1st Gir.1991),
denied,
302,
cert.
U.S.
308
2245,
denied,
978,
72
456 U.S.
(1992);
986,
-,
112
States v. de Leon 914 F.2d 344-45 judge recused himself from the trial of Sonia (1st Cir.1990). Nena,” Rodriguez, Berrios purported “La drug ring, head of the grounds on the of his Sentencing errors. familiarity with the facts of the case because Vazquez argues Medina previous trials, related of which this was judge erroneously district refused to reduce one. Ortiz Cameron claims that this shows his offense level four because of hi's mini prejudiced and should participation. § mal U.S.S.G. 3B1.2. The have recused himself earlier. In fact the (n. 2) suggests comment to the cited section obligation was under no him recuse sparingly, this reduction be used should Nena,” self from the trial of “La but did so as e.g., in a case where the defendant was en a matter of discretion. In Allied-Signal re gaged in single off-loading. In this case Inc., Cir.1989). De *6 there was credible evidence that Medina argument fendant’s is frivolous. Vazquez had been involved a number of off-loadings. In the absence of tran 8. resulting Motion mistrial for from script sentencing- hearings of the in either n misconduct. (cid:127) record, supplementary the record or the we judge shall assume that major controversy made The in this case swirls See, appropriate findings e.g., of fact. stemming Vale around allegations events from of Presbiteriano, Hospital don Martinez v. juror There misconduct. are two issues that 1128, 1135 Cir.1986) (“We First, F.2d have held arise in this context. we must decide repeatedly that we will not review a claim of finding whether the regarding district court’s appellant juror error has failed impartiality clearly to include a erroneous. transcript pertinent proceedings Second, of the in the we must decide whether a remark appeal.”). record on by investigating made the district court while question juror impartiality improperly argues Ortiz Cameron that the dis proof. shifted the burden of While these two judge sufficiently trict failed to make detailed questions factually are intertwined findings resolving of fact in disputes factual case, distinct, analytically they are and we objections by presentence raised inves therefore them consider seriatim. fact, tigation report (“psi”). objec In those psi present tions to the in our record on Background. A. appeal issues, raised no substantial factual except guilt, already that of which had been government’s At the close of the jury. judge’s resolved The district case, daugh was advised that the findings adequate were more than under the juror, daily accompa ter of a had who been circumstances. nying her mother to the had been prolonged observed conversation with a assistance counsel. Ineffective young girl woman identified as the friend of alleges
Ortiz Cameron
ineffective as
the defendant Ortiz Cameron. The district
sistance of trial
repeatedly
daughter
counsel. We have
then interviewed the
and her
that,
circumstances, mother,
exceptional
juror.
appeared
held
absent
It
from these
their answers and his observation of their
juror
had discussed the
interviews that
daughter, and
demeanor.
length with her
had
case at
very
views about the testi-
expressed
definite
Counsel for Ortiz Cameron
mony
government’s witnesses. The
of the
(and
Vazquez
for
counsel for
counsel Medina
understanding
daughter
reported her
appeal
before
another defendant whose
is not
n
jurors
talking with her mother that the
from
us)
a mistrial.
for Ortiz
moved for
Counsel
among themselves.
discussed the case
expressly
Arrigoitia
declined to so move at
juror
segregated
then
joined
only
that time and
in the motion
at the
later excused.
very
just
closing
end of the
before
’
response
judge’s com
arguments.
judge then summoned all of the
ment,
Arrigoitia
counsel for Ortiz
admitted
chambers,
one,
one
and asked them
into
initially
joining
that he had
refrained from
following
questions:
series
purpose
claiming
double
the motion for the
you
with
point,
1. At this
have
discussed
jeopardy
granted
if the motion had been
anyone
guilt or inno-
else the
his consent.
It is our view that a
without
of the
cence
defendants?
prompt
motion for a mistrial should be made
ju-
you
2. Have
with the other
discussed
ly. This was no case of mistake or inadver
anyone
reputation
or with
of the
rors
tence,
delay
tactical
but one of deliberate
defendants?
timely
purposes.
to make
motion
Failure
ju-
you
Have
with the other
discussed
con
for mistrial under these circumstances
anyone
credibility of
rors or with
else the
precludes
a waiver and
consideration
stitutes
any of the witnesses?
respect
appeal
of this issue on
to Ortiz
DiPietro,
Arrigoitia.
United States v.
point,
Cf.
4. At this
reached
deci-
(1st Cir.1991)
(inferring
9-10
regarding
or innocence of the
sion
protec
of a
constitutional
waiver
defendant’s
defendants?
against
jeopardy
tion
double
from silence
jurors except
All
one answered the
opportunity
where the defendant had the
questions
negative.
three
in the
One
first
later);
object
day
but failed to do so until one
thought he had
some
said that he
heard
States,
Grimaldi United
F.2d
about the case
could not re-
comment
(1st Cir.) (explaining that where defendant
*7
member what it was about. Four
opportunity
the
to renew a motion for
however,
question in the
answered the fourth
misconduct,
prosecutorial
de
mistrial for
affirmative, indicating
they
had reached
so,
preserved,
clined to do
the claim was not
concerning
guilt
a decision
the
or innocence
denied,
971,
appeal),
444
100
cert.
U.S.
judge
of the defendants. The
then recalled
465,
(1979);
at 400. case, juror discovering upon this suggested It is that the district eigh- spoken the trial to her about proof court shifted the burden of when it im- year-old daughter, the district court teen jurors: asked the four “would be able to juror mediately summoned keep open your mind and the course of separate inter- daughter to chambers for your deliberations with fellow reex presence -in the of all counsel. views your change your opin amine own views and juror spoken to her. confirmed that she had Although if it is erroneous?” ion convinced defendants, daughter but denied about the judge’s recognizing that the remark is less jurors that she had talked to the other about model, view the than a textbook we do not segre- promptly the case. district language employed, in context of specific gated the and announced his intention suggesting that the defendants individually all to deter- to interview proving innocence. bore the burden of their if others had been tainted. The mine First, judge’s an in- remark was not speaking following morning all denied question at all but a asked mid-trial struction other, the case to outsiders or each about investigation in the context of an we have though thought one he had heard some com- supra otherwise held to be sufficient. See among the case with- ment about Second, question- Part A. some- identifying what those comments con- out —even *8 be an instruction —did not how deemed to present were not cerned. Counsel but were place proof any specific the burden of directly permitted participate to in the inter- jurors' party merely the asked whether views; however, questions posed by the the ability retained the to reexamine their views previ- judge to the reflected concerns Indeed, light developments. in the of further ously expressed counsel. Counsel has judge scrupulously indicating what juror avoided right pose specific questions to a or to particular thought pos- views he the inquiry. pursue every desired avenue of to only jurors’ referred and direction of a court’s investi- sessed instead The control ability change “opinion,” juror' to their whatever it gation into misconduct is within extremely dissenting colleague suggests an “alterna- ror Carrero-Roman’s' answer was in- 2. Our and, ground court's tive for reversal”—the district definite on the facts of this did not inquire Moreover, to into Juror Carrero-Roman's failure require full-fledgedjudicial inquiry. a jury had that members of the dis- statement judge essentially full-fledged a in- conducted Stahl, n. 9. The defen- cussed the case. See dants, however, quiry jurors questions he asked the when argued specifically have not precisely impro- have revealed which would event, any appeal. In we do consid- issue on priety Judge which Stahl 'fears. ground Ju- er the alternative to be meritorious. 444 jury Third, “merely it not to evaluate the assuming that told the again
might be.
instruction,
hearing
it
until the evi-
an
evidence would be
to
deemed
question were
court had rendered
dence was all
give the district
did not
the defendants
by,
any stage,
Id. at 118. We further
it
at
its instructions.”
opportunity to cure
an
that:
alternative instruction.
noted
proposing a sound
Telling'
jury
postpone making
a final
And,
assuming
question were
finally,
instruction,
judgment until all the evidence has been
viewed in the con-
it must be
jury as to
Boylan,
presented, does not instruct the
jury charge. See
text of the entire
244;
weight
given
or
that should be
Cupp Naughten,
effect
see also
Except my instructions to on the law, anything may I disregard STAHL, should Judge (dissenting). Circuit arriving during have said the trial majority respect, I With dissent your findings to the own facts. opinion because I believe that Any slight ambiguity created the mid-trial juror response alle- court’s to the misconduct mind,” then, “open ade- to an reference gations obliges grant in this us to defen- case the “instruction” is quately dispelled once issue, regard dants a new trial. With to this other, ample in the context of these viewed majority rests its affirmance on the well- instructions.4 have dis- established rule district courts appropriate support for conclusion cretion “to fashion an and re- find further our We precedent. sponsible procedure determine factor —circuit See whether a fifth Nickens, [juror] actually F.2d 118— misconduct occurred and United States v. (1st Cir.1992). Ante, prejudicial.” it at 442 In Nickens the district whether 258). (citing Boylan, opening charge 898 F.2d at While judge, in his closing agree that a district court has broad discre- made to the remarks “open inquiry the nature of arguments, actually mind” tion determine its issued misconduct, allegations into I do not very similar to the mid-trial instruction finding think that that discretion is so broad as to question asked here. error, permit a court to commit errors of constitu- plain instruction was not we held regard beyond to each provide just examples, the stated: a reasonable doubt 3.To two of each offense. element presumed by law the defendants are Indeed require the innocent. The law does not to be note, however, 4. We that this entire situation' prove produce defendant to his innocence easily have been avoided had the could inference whatsoev- evidence at all and no *9 arose, jurors, at the time instructed the this issue a defen- er drawn from the election of proving guilt the that the burden of always defendants’ testify. dant to government. with the rests prosecution[,] government, that is the The providing proving de- the[ of or has the burden judge "open 5. The below also made a guilty beyond doubt and mid-trial a reasonable fendants] so, easily acquit statement which is more you must them. mind” construed he to do fails Later, judge repeated up the as an "instruction." As the dissent acknowl- that "it is the however, challenged guilty edges, prove be- no one this statement government defendants] the[ it, then, any stage. If we were to review it yond in the doubt." Elsewhere reasonable plain under a rubric and charge the would be error Nickens continually instructed the directly proof would control. government burden of that the bore the then, reasons, attorney unexplained re- inqui- that performing while tional dimension tracted his motion for mistrial. ry. following morning, The the court com- Here, in its the district effort interrogations of each of the remain- menced juror misconduct had oc- whether assess jurors, beginning ing twelve with the curred, inquiry method of which selected a part in foreman. Counsel took no the formu- effect, shifting the my opinion, of the following questions: lation of the four to the proof government burden of Moreover, failure the court’s (1) defendants. point you have with At this discussed jurors govern- the properly to the of instruct anyone jurors or with else the the other proof compounded the er- (2) of ment’s burden guilt innocence of the defendants? or result, opinion I am of the As a ror. you jurors Have with the other discussed grant- should have been motions for mistrial anyone reputation the or with the of defen- reasons, I (3) would reverse. ed. For these you with the dants? Have discussed jurors anyone else the credi- other or with view, properly be my cannot This (4) point bility the defendants? At this of summary of the a detailed resolved without you regarding a decision reached surrounding response the court’s events guilt the defen- the or innocence of juror allegations. begin misconduct the dants? facts. a recitation of therefore with these n jurors eight of other The foreman and the question possible mis- the When questions. answered “no” to all four One arose, immediately conduct Roman, jurors, Mr. Luis how- those Carrero correctly interrogation an commenced ever, the question three with state- answered woman, daughter of Gon- young the Juror “Well, say me to I can it is hard for ment: zales, with a conversing had been seen who yes, com- say yes we made because During inquiry, it girlfriend. the defendant’s say nothing that I can ments us but between daugh- that apparent to the court the became (hereinafter yes or no.” Four other girlfriend had dis- the defendant’s ter and collectively jurors”) as four referred to “the innocence. It cussed that defendant’s ques- answering “no” to the first three while daughter had dis- cléar became tions, “yes” fourth to the critical answered her many aspects of the case cussed with question. result', mother, As a Juror Gonzales. individually juncture, interrogated At Court then Ms. Gonzales. this jurors. court then four recalled the en- that she had admitted Juror Gonzales ques- question, a four one asked the daughter about gaged in with her discussions which, seriously lead- my opinion, tion denied, however, having ex- case. She asking question, the court ing. Before any opinion guilt to the or inno- pressed following statement: made the defendants, generally down- cence of before, guilt or you IAs instructed and content of discus- played the extent af- the defendants is decided innocence of juror had stated that no sions. She also evidence, final listening to all the ter opinion or inno- as to indicated ap- attorneys summations cence of the defendants. to the law to be plying instructions as inter- At the Juror Gonzales’s conclusion given by me. Diaz Fernan- rogation, for defendant counsel statement with: followed this The court for defendant Ortiz Cameron dez and counsel is, be able to question would my And response, the court for a moved mistrial. in the course of keep open mind and ques- not intend to indicated it did first your fellow your deliberations jurors. AUSA any of tion change your views and own re-examine requested, that the court reconsider erroneous? if convinced it is your opinion court then indicated that decision. The ques- four answered mo- Each of the on the would take no action mistrial it *10 Luis Juror Carrero in the affirmative. what to tion evening but would decide tions that Roman, having engaged to admitted morning. who Ortiz Cameron’s following do the jurors, Immediately thereafter, not discussions with re- the court entered called. At no time did the court coun- following allow statement for the record: follow-up speak propose ques- sel to or to right. All This is a matter deciding Indeed, throughout inquiry, tions. jurors, especially whether these the four court allow refused to defense counsel to questioned, that we have are sincere utter so much as a word. willing give and will be to these defendants ended, however, inquiry After the believef,] all process. due And I and I so objections. entertained Counsel for find[,] that these are sincere and in objected length Diaz Fernandez both to the way they expressed opinion the same an interrogations leading of the court’s they that have reached a decision as question. nature of the revised He also now, they sincerely keep are able to pointed out that some had stated that open an mind and re-examine their own they either had discussions with one another impressed views.... I by the sinceri- already up or had made their minds. Coun- ty of the expressions answers and the mistrial, sel then renewed his motion for a the face of each when I asked the stressing his belief that no instruction could part question.... second of the last problem. cure the Counsel for defendant The court pending then denied the motions joined Ortiz Cameron then motion Subsequently, for mistrial. counsel for de- mistrial, arguing presumption in- joined fendant Pedro Rivera the motions for compromised. nocence had been Counsel for mistrial. Arrigoitia, objecting defendant Ortiz while The court then decided to excuse Juror juror questions, the court’s nonetheless did Gonzales, daugh- whose discussions with her join not the motion for mistrial. inspired inquiry, ter had the entire a decision point, At expressed the AUSA also approved by all counsel. When the inquiry: concern the court’s reconvened, the court instructed it as follows: me, thing point concerns and it is a [0]ne So, again repeat my you, I instructions to brought up by [defense counsel] concern express opinion regard- not to form or an ing given the instructions that have been ing guilt defendant, or innocence of the petit jury the Court to the to the effect keep open an mind. Don’t discuss the they keep open should an mind at all among yourselves anyone case or with apparently times until the end. And these Keep open else. an mind. least, jurors, kept open four not objected No one to this instruction. proceedings. mind until the end of the The court’s final instructions to the concerns, aAs result of these the AUSA following: contained the urged specific findings the court to enter charge against The indictment or formal to the “demeanor” the four jurors: guilt. the defendant not In- evidence of ... I ask that would court make [ ] presumed by deed the defendants are law findings jurors] to the effect that four [the require to be innocent. The law does not appeared] quite to be sincere.... prove the defendant to his innocence or is, Honor, bottom Your a line this is due produce any evidence at all and no infer- issue, process whether these defendants may ence whatsoever be drawn being process by are afforded due these testify. election of the defendant not to effect, and to that I believe the finding may may Court have to would enter Under the law a defendant can, yes, they they willing testify up are able as he elects since it is keep open government prove guilty beyond mind and to reach a decision them upon at the end of the case based reasonable I doubt as said before. given by evidence and the require instructions law does not the defendant to take shot, think testify pre- would it is a close court. witness stand I think sumption may there is sufficient information re- be raised and no through question- ceived the Court inference of kind be drawn from ing testify. to make a decision. defendant’s failure to *11 semantics, addition, and have exalted form over gave several other In the join ap- I in connection substance. cannot such “reasonable doubt” instructions time, where, here, fun- proach, particularly At no the aspects various of the case. unequivocally right that damental to a fair trial is at stake. did it instruct always gov- on the proof the burden of majority’s point^-ie., As to the fifth its ernment.6 Nickens, 118-19, upon reliance 955 F.2d at judge’s “open proposition for the that the majority that the district concludes any shifting mind” instructions cured such conclusion about court reached a reasonable proof am In Nick- the burden of baffled. jurors and that defen- —I impartiality of the ens, upheld “open mind” we almost identical Vazquez: and Medina dants Ortiz Cameron only acknowledging that instructions after compelling to the con- present no evidence (af- they problematic. id. at 118 were See trary nothing in the record and we find “[wjithout firming endorsing instructions that that leads us to believe form”). analyzing their We were those in- investigation inadequate or his court’s they structions to determine whether alone findings clearly erroneous. negating presumption had the effect of Ante, my Respectfully, review of 443. reasoned that those instruc- innocence. We opposite leads me to the that same record normally suggest “would to the [not] tions conclusion. government’s proving burden of prov- guilt equal is to defendant’s burden of four who admitted When faced with ing (emphasis supplied). innocence.” Id. opinion they had formed an about extraordinary Finding nothing in that defendants, guilt or innocence of the not we concluded that the instructions were brought these four into district court egregious plain error.” “so as to constitute and, view, my again structured chambers Id. way question in “open mind” such only acceptable response. Be- “yes” was the Here, however, reviewing we not are question, effectively asking the the court fore “open mind” instruction to determine wheth- jurors, reminding them the four admonished negating the effect of er it alone had beginning the trial at the of its instruction Rather, innocence. we must presumption of only guilt or innocence to determine problemat- determine whether this otherwise not hearing of the evidence. One does all multi-layered ic instruction cured the burden degree psychology to understand need a problems presented by this ease. proof the four that this statement had on the effect that this instruction cannot think it obvious “ques- jurors’ ability this critical to answer as curative.7 As and should not be viewed manner. in a calm and uninhibited tion” such, my colleagues’ reference to Nickens as entirely controlling precedent” is un- “circuit majority opinion, pages At 442-43 of the persuasive. why this my offer reasons brethren five sum, my strong opinion that when not, estimation, it is in their shift question did jury, the trial any one he reconvened I do not think that proof. burden of misper- obligation any potential cure sufficiently answers the points these five colloquy may left ceptions his points, I am problem. the first four With the four on the fundamental analysis minds of my colleagues have ceded afraid that (sic) beyond and if he fails jury, a reasonable doubt charge the court in- to the In its initial Thus, so, government’s acquit as follows: while burden them. structed on to do must charge against proof or government's or formal burden of strict The indictment guilt. burden, Indeed the not evidence of necessary defendant is the de- heavy it is not inno- presumed law to be are defendants proved beyond all doubt. fendant’s require the defendant cent. The law does produce evi- prove or his innocence Moreover, error think that the court’s I do not whatsoever dence at all and no inference merely escape because it entered review should of a defendant not the election be drawn from findings specific about the "de- into the record testify. "sincerity” of each of the visible meanor” and prosecution has government, that is the question. juror’s answers guilty proving providing them the burden of *12 question proof. of who bears burden of Toby Klang WARD, Plaintiff, Appellant, very
Waiting
lengthy
until the
end of a
trial
jury properly
question
to instruct the
this
v.
prejudice.8
does not alleviate the
Under
HICKEY,
al., Defendants,
et
Carol
review,
standard of
I think these convictions
Appellees.
reversed and that
should be
defendants
Toby
WARD, Plaintiff,
Klang
Appellee,
granted
Any
should be
a new and fair trial.9
“
v.
result denies these defendants
‘ba
”
Constitution,
protection’
HICKEY,
al., Defendants,
sic
afforded
A.
et
Carol
Appellees.
protection
profound
reflects “‘a
which
way
judgment about the
in which law should
The School Committee of the Town of
”
justice
administered.’ Sul
be enforced and
Belmont, Defendant, Appellant.
——
Louisiana,
U.S.-,-,
livan v.
Toby
WARD,
Klang
Plaintiff, Appellee,
(1993)
2078, 2083,
S.Ct.
(1968)). I therefore dissent. Appellants.
Toby WARD, Klang Plaintiff, Appellant, HICKEY, al., Defendants, Carol et Appellees. 92-1883, 92-2240, 92-2241,
Nos. 92-2271. Appeals, United States Court First Circuit. 5, April
Heard 1993. 15, Decided June 1993. Id. 711-12 lowing four-part inquiry tions that mission that members of the Cir.1979), a trial court should conduct the fol- conversed about the case. As we made clear in tion of innocence. proof. United States v. instructions that surfaced, irrelevant court, the numerous occasions on which the district I further note that the clearly prejudicial. sons if the court determines either that the To bolster its cial, misconduct occurred; inquire (citing adequately later in the ascertain prejudicial; grant before the Those instructions instructed the into Juror Luis Carrero United States v. jurors may [2] a new Cir. determining did address the district court's failure affirmance, Richman, whether if it 1975)). Here, trial, not take [3] trial; did, if not made statements or have acted when faced with misconduct 600 F.2d majority opinion determine whether [and] [4] negated are, however, whether the district Doe, misconduct place clearly unprejudi on the burden of majority had, Roman’s or was not specify improperly: allegations presump- learning refers to actually allega- utterly gave does fact, rea (1st ad- it the fore, what Juror Carrero did or did not know about district court now has man have been relaxed to such all. record contains no such Judge Stahl fears.” and, second, any inquiry have revealed ty's could not ly native asked the other heard. what have had with other result, the record contains no evidence about inquire further and refused to allow defense discussed the counsel from Juror Carrero that members of the Furthermore, conducted a putative juror majority, circumstances, cavalier conclusion that "the that the once strict types grounds We possibly interject follow-up questions. are left to of discussions Juror Carrero to conduct precisely for reversal. I cannot jurors questions misconduct. full-fledged inquiry have revealed I consider Ante, speculate. discretion, according essentially agree requirements "full-fledged inquiry”; at 443 n. 2. First the of "the other impropriety It with the an extent may anything appears, error an alter- which would light have over- inquiry when essential- failed of Rich- jury jurors" majori- that a which there- about As a may all he to-