Free Terminate Hearings - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In an order dated May 26, 2005, the court granted Defendant's Motion for New Trial. (doc. #73). The court reasoned that the harmless error standard applied and that it could not say with "fair assurance" that the error in this case did not influence the verdict. Now before the court is Government's Motion for Reconsideration of Order Granting Defendant's Motion for New Trial (doc. #75) and Defendant's Opposition to the Motion for Reconsideration (doc. #79). On more thorough briefing, the Government now argues that the plain error standard applies, as opposed to the harmless error standard, because the Defendant did not object to the admission of the document that contained information about her potential sentence. The court concludes that it erred in granting a new trial under the harmless error standard. Defendant does not carry her burden of satisfying the plain error standard, and therefore the order granting Defendant's Motion for New Trial (doc. #73) will be vacated and the Motion for New Trial (doc. # 75) will be denied.
Case 2:03-cr-01123-NVW Document 80 Filed 07/26/2005 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Maria Del Refugio Rodriguez-Ramirez, ) ) ) Defendant. ) ) United States of America,

CR-03-1123-PHX-NVW ORDER

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I. The Improper Information Before the Jury In January 2005, Defendant was convicted by a jury of illegal reentry after deportation under 8 U.S.C. § 1326. Defendant now moves for a new trial on the ground that information about the sentencing range for illegal reentry was improperly before the jury. At oral argument on Defendant's Motion, Mr. Michael Bernays, counsel for Defendant, avowed to having the following interaction with several jurors after the trial. Mr. Bernays stayed behind to speak with the jurors for ten to fifteen minutes.1 He then walked out of the courthouse with them. Two jurors fell back and continued talking with him. Right before they were about to part ways, one juror asked Mr. Bernays what sentence he thought the Defendant would receive. The other juror responded that the Defendant was going to get twenty years. Mr. Bernays asked the juror how she knew that, and she responded that it was in an exhibit. Upon inspection of the exhibits Mr. Bernays discovered that the sentencing range for illegal reentry was listed on the document entitled "Warning to Alien Ordered Removed or Deported." The Government had offered this exhibit to show that Defendant was personally warned about the required procedures to legally return to the United States and the potential consequences of doing so illegally. Defendant did not object to the exhibit's admission. At the bottom of the page in bold print and surrounded by a box it stated: WARNING: Title 8 United States Code, Section 1326 provides that it is a crime for an alien who has been removed from the United States to enter, attempt to enter, or be found in the United States without the Attorney General's express consent. Any alien who violates this section of law is subject to prosecution for a felony. Depending on the circumstances of the removal, conviction could result in a sentence of imprisonment for a period of from 2 to 20 years and/or a fine up to $250,000. Mr. Bernays' conversation with the two jurors shows that, in conformance with the court's instruction not to consider punishment, the jury did not discuss Defendant's possible sentence despite the inadvertent admission of the above information. Ninth Cir. Model Jury Instruction 7.4 (advising the jury that it "may not consider punishment in deciding whether

The court advised counsel before trial that it would allow them to speak with the jurors following the verdict if neither party objected, which they did not. -2Case 2:03-cr-01123-NVW Document 80 Filed 07/26/2005 Page 2 of 6

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the Government has proved its case against the defendant beyond a reasonable doubt). If the jury had discussed it, the one juror would not have asked Mr. Bernays what sentence Defendant would receive. It is clear, however, that at least one juror read the document and knew at least the maximum statutory sentence. II. The Parties' Request to Examine Jurors In light of the ambiguity surrounding what the jurors did and did not consider in reaching their verdict, both parties requested an opportunity to examine the jurors under oath. The court suggested to counsel that to do so they would have to have authority to stipulate out of the prohibition of Federal Rule of Evidence 606(b), which provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Rule 606(b) proscribes inquiry into the jury's internal deliberations unless the inquiry

15 is directed at "extraneous prejudicial information." The sentencing range information about 16 which counsel would like to inquire is not extraneous. It was contained in a document 17 offered by the Government and admitted into evidence without objection. The parties' joint 18 request to question the jurors notwithstanding this rule and their agreement to waive any 19 resulting prejudice or error is insufficient to circumvent Rule 606(b). The parties cannot 20 waive the protection conferred by the rule because it belongs to the jurors and to the public 21 interest. Though inquiry after the fact could not affect their past deliberations in this case, 22 the jurors could be tainted for later jury service if they are examined about their deliberations 23 in this matter. They could conclude from the experience that jury deliberations can be 24 subsequently discovered by the court, the Government, and the defendant, thus impairing 25 their deliberations in any future jury service. It is in the interest of all parties and of the 26 justice system that jurors know their deliberations will remain secret and that their reasons 27 28 -3Case 2:03-cr-01123-NVW Document 80 Filed 07/26/2005 Page 3 of 6

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for reaching a verdict will not be questioned. Thus, the court denies the parties' request to examine the jurors. III. Defendant's Motion for New Trial The Government admits that it was error to have offered the document with the sentencing information into evidence. Defendant did not object to the document for the obvious reason that neither counsel nor the court noticed the reference to statutory penalties. The plain error standard applies when a defendant fails to preserve error through objection. See, e.g., United States v. Buxton, 150 F.3d 983, 997 (9th Cir. 1998); United States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995); United States v. Briscoe, 574 F.2d 406, 408 (9th Cir. 1978). The harmless error standard, which the court erroneously applied in its May 26, 2005 order, applies to non-constitutional errors to which proper objection is made and requires reversal unless the reviewing court can say with "fair assurance" that the error did not influence the verdict. United States v. Brooke, 4 F.3d 1480, 1488 (9th Cir. 1993); see Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). To apply the harmless error standard to non-constitutional errors to which the defendant did not object would collapse the difference between objecting and not objecting at trial. Therefore, Defendant, rather than the Government, bears the burden of persuading the court that the error was plain under the applicable standards. See United States v. Keys, 133 F.3d 1282, 1286-87 (9th Cir.), amended 143 F.3d 479 (9th Cir.) and 153 F.3d 925 (9th Cir.), cert. denied, 525 U.S. 891 (1998). Defendant must first show that the error was plain, which she does by proving it was clear or obvious under current law. United States v. Olano, 507 U.S. 725, 734 (1993). It is clearly and obviously error to place sentencing information before the jury, as jurors are not permitted to consider punishment. See Ninth Cir. Model Jury Instruction 7.4. "[I]t is inappropriate for a jury to consider or be informed of the consequences of their verdict." United States v. Frank, 956 F.2d 872, 879 (9th Cir.1991), cert. denied, 506 U.S. 932 (1992). When a plain error has occurred, the defendant must next show that the error had an unfair prejudicial impact on the jury's deliberations. United States v. Young, 470 U.S. 1, 1617 n. 14 (1985); United States v. McKoy, 771 F.2d 1207 (9th Cir. 1985) (adopting the Young -4Case 2:03-cr-01123-NVW Document 80 Filed 07/26/2005 Page 4 of 6

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formulation). The error in this case did not have a prejudicial impact on deliberation because the jury did not discuss the potential punishment. Even if all of the jurors were aware of the information, the court presumes they followed the instruction not to consider punishment. United States v. Span, 75 F.3d 1383, 1390 (9th Cir.1996). Two Ninth Circuit cases suggest that any prejudicial effect from sentencing information can be cured, Olano, 62 F.3d at 1201-02; United States v. Ferro, 549 F.2d 145 (9th Cir. 1977), and model instruction 7.4 had a curative effect in this case. Thus, the erroneously admitted information did not influence the jury's deliberations in any substantive way. See United States v. Jimenez-Dominguez, 296 F.3d863, 867 (9th Cir. 2002), cert. denied, 537 U.S. 1166 (2003). If Defendant had shown that the error had an unfair prejudicial impact on the jury's deliberations, she would have next had to show that it seriously affected a substantial right. Young, 470 U.S. at 16-17 n. 14; McKoy, 771 F.2d at 1207. However, for an error to affect a defendant's substantial rights, it must have affected the outcome of the jury's deliberations. Jimenez-Dominguez, 296 F.3d at 867; United States v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000). The sentencing information did not seriously affect Defendant's substantial rights because it did not go to Defendant's guilt or innocence. In addition to not implicating Defendant's guilt or innocence, the error did not affect the fairness, integrity, or public reputation of judicial proceedings, which is the final prong of the plain error test. United States v. Atkinson, 297 U.S. 157, 160 (1936). These aspects of the trial were not undermined by the inadvertent admission of a potential sentencing range. In sum, Defendant has not met her burden under the plain error standard. While a plain error occurred, she has not shown that it affected the outcome of the proceedings in such a highly prejudicial manner that a miscarriage of justice would result unless the exceptional remedy of a new trial were granted. IT IS THEREFORE ORDERED that the May 26, 2005 order granting Defendant's Motion for New Trial (doc. #73) is vacated. IT IS FURTHER ORDERED that Defendant's Motion for a New Trial (doc. #62) is denied. -5Case 2:03-cr-01123-NVW Document 80 Filed 07/26/2005 Page 5 of 6

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IT IS FURTHER ORDERED vacating the trial date set August 23, 2005. IT IS FURTHER ORDERED directing the U.S. Probation Office to prepare the Presentence Report. IT IS FURTHER ORDERED setting sentencing on Monday, October 3, 2005 at 11:00 a.m. DATED this 26th day of July, 2005.

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