United States v. Register , 182 F.3d 820 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
07/29/99
THOMAS K. KAHN
No. 96-2599 CLERK
____________________________
D.C. Docket No. 93-305-CR-T-17A
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUBAL CHARLES REGISTER,
RONALD OWEN BILBREY, JR.,
and HERBERT CHARLES REGISTER,
Defendants-Appellants.
________________________________________
Appeals from the United States District Court
for the Middle District of Florida
_______________________________________
(July 29, 1999)
Before MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.*
__________________
*This decision is rendered by a quorum, due to the retirement of then-Chief Judge
Hatchett on May 14, 1999. See 28 U.S.C. § 46(d).
KRAVITCH, Senior Circuit Judge:
A jury convicted defendants-appellants Herbert Charles Register (“Charles
Register”), Jubal Charles Register (“Jubal Register”), and Ronald Owen Bilbrey, Jr.
(“Bilbrey”) in November 1995 of various federal crimes related to drug trafficking,
including one count of conspiring to distribute and to possess for the purpose of
distributing methamphetamine in violation of 21 U.S.C. § 846 and multiple counts of
possession with intent to distribute and distribution of methamphetamine in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The jury also convicted Bilbrey and
Charles Register of other drug offenses; Charles Register of two counts of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g); and Jubal Register
of carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C.
§ 924(c).1 Finally, the jury required the defendants to forfeit two businesses and two
parcels of real estate pursuant to 21 U.S.C. § 853(a). The district court set aside the
jury’s verdict against Jubal Register for using a firearm in relation to drug trafficking,
sentenced all three defendants on their convictions, and entered an order requiring the
defendants to forfeit the property in question.
Each defendant appeals several aspects of his trial, conviction, and/or sentence.
The defendants present a total of seven issues for our consideration: (1) whether the
1
The jury found the defendants not guilty on several other counts charged in the
superseding indictment.
2
amount of time that passed between the initial indictment and the trial violated Jubal
Register’s statutory or constitutional right to a speedy trial; (2) whether the district
court violated Charles Register’s constitutional right to be represented by counsel of
his choice by disqualifying his retained attorney prior to trial; (3) whether the district
court erred in refusing to grant Charles Register an adversarial, pre-trial hearing with
respect to the government’s filing of notices of lis pendens regarding his property,
effectively preventing him from using that property to retain a new attorney; (4)
whether the district court erred when it retained one juror accused of bias and when
it dismissed and replaced another juror for improper conduct; (5) whether sufficient
evidence existed to support Jubal Register’s convictions; (6) whether the district court
erred in enhancing Charles Register’s and Jubal Register’s sentences for possession
of a firearm during the commission of a drug offense; and (7) whether the district
court violated the Ex Post Facto clause by applying the most recent version of the
Sentencing Guidelines.
With respect to the last three issues, we have examined the record and found
those challenges to be without merit; we therefore affirm the district court’s decisions
on those three points without discussion. We also affirm the district court with respect
to the first four issues, for the reasons discussed in Part II of this opinion.
I. Background
3
A grand jury originally returned an indictment encompassing some of the
charges in this case in 1992 (“the initial indictment” or “the 1992 indictment”). As
a result, Charles Register and Jubal Register both were arrested. At their arraignment
in October 1992, the government brought to the court’s attention a possible conflict
of interest: Charles Register’s attorney previously had represented several potential
witnesses and currently was representing Jubal Register on matters related to the
charges in the indictment. The court held a Garcia2 hearing, explaining to Charles
Register how his attorney’s other representations could impair his ability to represent
Charles Register effectively. Charles Register waived any conflict of interest, electing
to proceed with his attorney, and the court accepted this waiver. The court detained
Charles Register; Jubal Register initially obtained bond but violated conditions of his
bond release in May 1993, which resulted in his detention. Both Charles Register and
Jubal Register remained in prison until their trial in November 1995.
In November 1993, a grand jury returned another indictment (“the 1993
indictment”) that included additional defendants3 and charges; shortly thereafter, the
government dismissed the initial indictment. The 1993 indictment charged, among
2
See United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).
3
The 1993 indictment (and the superseding indictment) originally charged five
defendants. On the day the trial began, one of them pleaded guilty, and the government
dismissed the indictment as to another.
4
other things, that the defendants had formed an “enterprise” to provide an organized
framework for distributing controlled substances in violation of the federal Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. It
alleged that one manner in which the enterprise operated was that unnamed
“attorneys” representing members of the enterprise would learn of the forthcoming
execution of search warrants, warn enterprise members of the warrants, and conceal
contraband for the members to avoid detection, and would share other information
they obtained from their clients with other members of the enterprise. The 1993
indictment also set out the charges on which the jury ultimately convicted the
defendants and included forfeiture allegations with respect to personal property,
businesses, and real estate parcels. Immediately after the grand jury returned this
indictment, the government filed lis pendens notices with respect to three pieces of
real estate on which it was seeking forfeiture. Charles Register had an ownership
interest in two of these pieces of property.4
In January 1994, the government again moved for the district court to disqualify
Charles Register’s retained attorney because of an actual or potential conflict of
interest. This time the government argued that (1) in the past the attorney had
4
Although Charles Register apparently did not have legal title to either piece of property
and the exact nature of his interest is unclear, all parties agree that he had some ownership
interest in each of them.
5
represented some of Charles Register’s codefendants in state court on substantially
related matters; (2) the attorney currently was representing Jubal Register in a related
state court matter; and (3) the attorney was a subject, though not a target, of the
ongoing grand jury investigation into the criminal activity covered by the indictment,
and the government possessed information implicating him in the defendants’ alleged
criminal conduct. The court ordered a full-scale, adversarial Garcia hearing to resolve
the conflict of interest issue.5
The court held the second Garcia hearing over three days in December 1994.
The government called five witnesses who testified about four possible incidents of
misconduct by the attorney. Counsel representing Charles Register’s attorney cross-
examined the government’s witnesses and called two government agents to the stand.
At the conclusion of the testimony, the government and the attorney’s counsel
presented arguments regarding whether the evidence presented at the hearing would
be admissible at trial, whether the evidence could be redacted in a way to avoid
implicating Charles Register’s attorney, and whether the evidence demonstrated an
actual or potential conflict of interest such that the court should disqualify the
attorney. In January 1995, the district court issued its ruling that an actual conflict of
5
The court determined that a new Garcia hearing was necessary because the
government’s new allegations—that the attorney could have a conflict based upon his possible
involvement in the defendants’ criminal activity and the grand jury’s investigation of his
actions—were not before the court at the first Garcia hearing.
6
interest existed because the attorney might be more strongly motivated to protect his
own interests than those of his client, Charles Register. Although the court did not
issue any conclusive findings with respect to the truthfulness of the allegations against
the attorney, it found a reasonable possibility that the allegations were true based upon
the credible testimony of the government’s witnesses. On this basis, it refused to
accept Charles Register’s waiver of the conflict of interest and disqualified his
attorney.
In March 1995, the grand jury handed down its third indictment related to these
defendants (“the superseding indictment”), which replaced the 1993 indictment. The
superseding indictment was substantially similar to the 1993 indictment except that
it eliminated all RICO charges, including all references to any participation by the
defendants’ unnamed “attorneys” in their criminal activities.
Meanwhile, Charles Register had begun trying to find a new attorney.
Although he located an attorney whom he wanted to hire, Richard Hersch, Charles
Register’s only assets were the two properties with respect to which the government
had filed notices of lis pendens in anticipation of requiring their forfeiture. He
contended that because the lis pendens notices effectively prevented him from using
those assets to retain counsel, the government violated his rights to due process and
to be represented by an attorney of his choice by filing the notices without providing
7
him with an adversarial, pre-trial hearing. Hersch entered a limited appearance on
behalf of Charles Register on this issue only, demanding a pre-trial hearing with
respect to the government’s restraint of the property. In the meantime, however, the
court found Charles Register to be indigent and appointed an attorney to represent
him. Charles Register quickly became unhappy with his appointed attorney and
petitioned the court at various times to appoint a new attorney or to allow him to
represent himself. A magistrate judge held a hearing to address Charles Register’s
representation in July 1995. After the magistrate judge determined that it needed to
appoint a new attorney, it replaced Charles Register’s appointed counsel in August
1995 with attorney Frank Louderback.6
The court referred the motion for a hearing on the lis pendens notices to a
magistrate judge who began trying to resolve the issue but ultimately determined that
he should recuse himself. The second magistrate judge to address the issue
recommended in September 1995 that Charles Register was not entitled to any hearing
regarding the reasonableness of the lis pendens notices. The magistrate judge
reasoned that such a hearing was not required to satisfy either Charles Register’s Sixth
Amendment right to counsel (because the court had appointed an attorney to represent
6
During the same time period, Jubal Register also was expressing displeasure with his
appointed attorney and demanding that the court allow him to proceed pro se. In August 1995,
however, Jubal Register and his appointed attorney apparently resolved their differences, and
Jubal Register rescinded his motion for the court to require his attorney to withdraw.
8
him) or the Fifth Amendment due process clause (because the lis pendens filings did
not themselves amount to a deprivation of property—they merely notified the public
that the government was pursuing forfeiture of the property). The district court
adopted this ruling, and Charles Register proceeded to trial represented by appointed
attorney Louderback.
The trial took place in November 1995 and lasted ten days. On the morning of
the first full day of jury deliberations, the government raised a concern about Juror
Number 6. After conducting a limited investigation, the judge dismissed the juror
over the defendants’ objections, replacing her with the first alternate. The newly
impaneled jury deliberated for nearly two days before returning the verdict described
above. The court subsequently conducted the forfeiture phase of the trial, and the jury
reached a verdict in favor of the government with respect to all of the property on
which the government sought forfeiture. At sentencing, the court adopted the factual
findings and Sentencing Guidelines applications recommended in the presentence
investigation reports for all three defendants except that as to defendants Charles
Register and Jubal Register, the court declined to apply an enhancement for
obstruction of justice. The court sentenced Bilbrey to 360 months of imprisonment
and 60 months of supervised release, and Charles Register and Jubal Register each to
9
222 months of imprisonment and 60 months of supervised release. This appeal
followed.
II. Discussion
A. Speedy Trial
Jubal Register contends that the 38-month delay between his arrest under the
initial indictment and his trial violated his rights to a speedy trial provided by the
Sixth Amendment and the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. We examine
the question whether the district court violated Jubal Register’s legal rights de novo.
See Whitley v. United States, 170 F.3d 1061, 1068 n.14 (11th Cir. 1999).
The Supreme Court has identified four factors that courts should consider in
determining whether a defendant has been deprived of his constitutional right to a
speedy trial: (1) the length of the delay; (2) the reasons for the delay; (3) the
defendant’s assertion of the right; and (4) the prejudice to the defendant. See Barker
v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972). The first factor
serves a triggering function; unless some “presumptively prejudicial” period of delay
occurred, we need not conduct the remainder of the analysis. See id. at 530, 92 S. Ct.
at 2192. The government concedes, however, that the 38-month delay in this case was
presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 652 n.1, 112
S. Ct. 2686, 2691 n.1 (1992) (“[T]he lower courts have generally found postaccusation
10
delay ‘presumptively prejudicial’ at least as it approaches one year.”); see also United
States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997) (recognizing that the Eleventh
Circuit is in accord with Doggett’s observation), cert. denied, — U.S. —, 118 S. Ct.
1523 (1998). Despite this significant passage of time, we conclude upon examination
of the other three factors that the delay did not violate Jubal Register’s constitutional
rights.
Beginning with the fourth factor, we note that Jubal Register has failed to put
forth a single argument that the delay in his trial resulted in any actual prejudice to
him. In fact, he apparently concedes that he suffered no prejudice and furthermore
recognizes that “[i]n this circuit, a defendant generally must show actual prejudice
unless the first three factors . . . all weigh heavily against the government.” United
States v. Davenport, 935 F.2d 1223, 1239 (11th Cir. 1991). Jubal Register
nonetheless contends that this court should find a violation of his Sixth Amendment
right by holding that the length of the delay, the reason for the delay, and his assertion
of his right all weigh strongly in his favor.
Although we agree that 38 months is an extraordinary period of time to force
a defendant to wait for a trial and that, under many circumstances, a delay of that
length would amount to a constitutional violation, in this case, the second and third
factors do not support a holding in Jubal Register’s favor. After studying the record,
11
we cannot attribute the delay entirely to the government. Instead, our analysis leads
us to conclude that Jubal Register, his codefendants, and the government all bear some
responsibility for putting off the trial; the complex nature of the charges and sheer
number of defendants and issues involved also account for some of the delay. As
explained in Part I, supra, the district court spent a significant amount of time
addressing the government’s motion to disqualify Charles Register’s attorney and
Charles Register’s motion for a pre-trial hearing on the lis pendens notices. The court
also dealt with issues that Jubal Register presented to it, including requests to allow
him to proceed pro se and multiple motions to reconsider its decision to detain him
after he violated the conditions of his original bond release. Jubal Register’s attorney
also moved for continuances on more than one occasion; the record reflects that he
filed the last such motion, which the court denied, only five days before the trial
commenced.7
Finally, the record belies Jubal Register’s contention that he aggressively
sought to exercise his right to a speedy trial. He claims that he attempted to enforce
his right on four occasions between April 1994 and September 1995, but in fact he
7
The district court also faced extensive pre-trial litigation between a local newspaper that
attempted to intervene in the case to gain access to the records pertaining to the attorney’s
disqualification, which had been sealed, and Charles Register and his retained attorney, who
vehemently opposed the release of those records. A codefendant’s interlocutory appeal also may
have affected the trial date.
12
demanded a speedy trial in only two of those motions; the other two requested that he
be released due to excessive pre-trial detention. Furthermore, the record shows that
on at least four occasions between May 1994 and October 1995 (including the above-
noted instance five days before the trial actually began), Jubal Register, through
counsel, moved for a continuance. In light of these facts, we cannot say that the
second and third factors “weigh heavily against the government,” Davenport, 935
F.2d at 1239, and we therefore find no violation of Jubal Register’s Sixth Amendment
right to a speedy trial.
We also reject Jubal Register’s argument that he is entitled to relief under the
Speedy Trial Act, which generally requires the trial of a criminal defendant to
commence within 70 days of the later of the date the indictment was filed or the date
the defendant made his first appearance before the court. See 18 U.S.C. § 3161(c)(1).
The sanction that the statute provides in case of its violation is dismissal of the
indictment, either with or without prejudice. See 18 U.S.C. § 3162(a)(2). The
defendant must request this relief, however, and “[f]ailure of the defendant to move
for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under this section.” Id.; see also United
States v. Tenorio-Angel, 756 F.2d 1505, 1508 (11th Cir. 1985) (refusing to grant
defendant relief for Speedy Trial Act violation because defendant failed to move for
13
dismissal of the indictment). Although Jubal Register on more than one occasion
demanded a speedy trial and moved for release from prison based upon excessive pre-
trial detention, the record reveals that he never moved the court to dismiss the
indictment, nor has he represented on appeal that he ever made such a request. He
therefore has waived any right he may have had to the statutory remedy.8
B. Disqualification of Counsel
Charles Register contends that the district erred by disqualifying his attorney
for two reasons. First, he argues that the evidence of the attorney’s wrongdoing was
too tenuous to override his Sixth Amendment right to be represented by counsel of his
choice. Second, he claims that the circumstances surrounding the disqualification
suggest that the government acted in bad faith to manufacture the conflict specifically
for the purpose of depriving him of this Sixth Amendment right. We review a district
court’s decision to disqualify a defendant’s attorney due to a conflict of interest for
8
Aside from Jubal Register’s waiver of the remedy, we doubt that any violation of the
Speedy Trial Act occurred. Despite the general 70-day deadline for the commencement of trials,
the statute provides for a number of periods of excludable delay, including time “resulting from
any pretrial motion,” 18 U.S.C. § 3161(h)(1)(F); reasonable time “when the defendant is joined
for trial with a codefendant as to whom the time for trial has not run,” id. § 3161(h)(7); and delay
resulting from a continuance if the judge finds “that the ends of justice served by taking such
action outweigh the best interest of the public and the defendant in a speedy trial,” id. §
3161(h)(8)(A). The record shows that large portions of the 38-month delay in this case were
attributable to each of these reasons. See generally supra pages 5-9.
14
abuse of discretion. See Wheat v. United States, 486 U.S. 153, 163, 164, 108 S. Ct.
1692, 1699, 1700 (1988); United States v. Ross, 33 F.3d 1507, 1522 (11th Cir. 1994).
The crux of Charles Register’s argument is that the law requires direct evidence
of an actual conflict of interest before disqualification of a criminal defendant’s
attorney of choice is justified and that the government did not produce any such
evidence in this case. He relies primarily on two circuit court cases—United States
v. Hobson, 672 F.2d 825 (11th Cir. 1982) (per curiam) and United States v. Fulton,
5 F.3d 605 (2d Cir. 1993)—to support this formulation of the law. Neither Hobson
nor Fulton sets out the rule that Charles Register infers from them. Hobson affirmed
the disqualification of the defendant’s attorney where the government presented an
affidavit of a witness expected to testify at trial who claimed that he and the attorney
had discussed the attorney’s assisting the witness in performing criminal activity
related to the drug conspiracy for which the government was prosecuting the
defendant. See Hobson, 672 F.2d at 826. Fulton reversed a district court’s acceptance
of a defendant’s waiver of his attorney’s conflict of interest when a witness, after the
trial commenced, stated that he would testify that the attorney had received a portion
of the drug shipment that the witness had smuggled into the United States. See
Fulton, 5 F.3d at 607-08. Thus, both Hobson and Fulton address situations in which
direct evidence existed of the attorney’s conflict of interest with his client, but neither
15
limits its holding to those circumstances. While attempting to construe these two
cases to stand for an extremely narrow formulation of the law allowing
disqualification of counsel, Charles Register ignores the Supreme Court’s most recent
teachings on this issue.
In Wheat, the Court granted certiorari to resolve a “substantial disagreement”
among the Courts of Appeals “about when a district court may override a defendant’s
waiver of his attorney’s conflict of interest.” 486 U.S. at 158, 108 S. Ct. at 1696.
Wheat recognized significant limits on a defendant’s right to be represented by
counsel of his choice. Conceding that “the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amendment,” the Court held that the
more important protection that the Amendment affords is the assurance of a fair trial:
“the essential aim of the Amendment is to guarantee an effective advocate for each
criminal defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” Id. at 159, 108 S. Ct. at 1697. In
addition to the defendant’s own Sixth Amendment interest in effective representation,
the Court pointed out that federal courts’ “independent interest in ensuring that
criminal trials are conducted within the ethical standards of the profession and that
legal proceedings appear fair to all who observe them” may circumscribe the right to
counsel of choice. Id. at 160, 108 S. Ct. at 1698. Thus, the Court directed:
16
The District Court must recognize a presumption in favor of petitioner’s
counsel of choice, but that presumption may be overcome not only by a
demonstration of actual conflict but by a showing of a serious potential
for conflict. The evaluation of the facts and circumstances of each case
under this standard must be left primarily to the informed judgment of
the trial court.
Id. at 164, 108 S. Ct. at 1700 (emphasis added).
The Court in Wheat did not confine its allowance of disqualification to
situations involving direct evidence of a conflict of interest. Although it did not
specifically address the nature of the evidence sufficient to support disqualification,
it did point out that district courts often must make a decision on this issue before all
of the relevant information has crystalized:
Unfortunately for all concerned, a district court must pass on the issue
whether or not to allow a waiver of a conflict of interest by a criminal
defendant not with the wisdom of hindsight after the trial has taken
place, but in the murkier pre-trial context when relationships between
parties are seen through a glass, darkly. The likelihood and dimensions
of nascent conflicts of interest are notoriously hard to predict . . . . It is
a rare attorney who will be fortunate enough to learn the entire truth
from his own client, much less be fully apprised before trial of what each
of the Government’s witnesses will say on the stand.
Id. at 162-63, 108 S. Ct. at 1699. This language simply does not comport with a rule
that the government must present direct evidence of a conflict before the district court
is authorized to disqualify a defendant’s chosen attorney.
Moreover, it is a common tenet of modern American jurisprudence that indirect
evidence (often called “circumstantial” evidence) is not intrinsically less valuable or
17
less reliable than direct evidence. See generally United States v. Henderson, 693 F.2d
1028, 1030 (11th Cir. 1982) (“Circumstantial evidence can be and frequently is more
than sufficient to establish guilt beyond a reasonable doubt. The test for evaluating
circumstantial evidence is the same as in evaluating direct evidence.”); United States
v. Sureff, 15 F.3d 225, 229 (2d Cir. 1994) (“Circumstantial evidence is . . . not a
disfavored form of proof.”). That the Federal Rules of Evidence do not mention direct
versus indirect evidence underscores the lack of a clear legal distinction between the
two. See 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice &
Procedure § 5162, at 16 (1978) (describing frequent “over-simplification” of
distinction between direct and circumstantial evidence); id. § 5163, at 37 (declining
to discuss definitions of various forms of evidence, including “direct” and
“circumstantial,” because “[m]ost of these sub-species are not recognized in the rules
of admission and exclusion” and “none of these terms are used in the Evidence
Rules”). Considering these acknowledgments of the potential significance of indirect
evidence and in light of the Supreme Court’s recognition of the need for the district
court prior to trial to evaluate the “murky” issue of a defendant’s attempted waiver of
his attorney’s conflict of interest, we conclude that the law does not require direct
evidence to support the court’s refusal to accept that waiver.
18
Turning to the facts of this case, the record shows that, as our precedent
requires, the district court held a full-scale, adversarial hearing in order to evaluate the
government’s evidence regarding the attorney’s alleged involvement in the
defendants’ illegal activities and Charles Register’s attempted waiver of any conflict
of interest.9 See United States v. Garcia, 517 F.2d 272, 278 (1975) (requiring hearing
to determine whether defendants competently waive right to conflict-free counsel); In
re Paradyne Corp., 803 F.2d 604 (11th Cir. 1986) (granting petition for writ of
mandamus to prevent district court from considering government’s motion to
disqualify in ex parte, in camera proceeding). In this hearing, the government called
five witnesses who presented evidence regarding four separate incidents illustrating
the attorney’s possible involvement in the defendants’ drug-related activities.10
9
Initially, the district court referred this matter to a magistrate judge in March 1994.
Because the government did not want to disclose to the attorney its information regarding his
possible involvement with the criminal activity, the magistrate judge complied with its request to
conduct an ex parte, in camera hearing, appointing independent counsel to defend the interests of
the attorney and Charles Register, who still wanted the attorney to represent him. Based upon
the government’s evidence presented at the hearing, the magistrate judge ordered the attorney
disqualified in June 1994. Charles Register moved the district court for reconsideration, and the
court in October 1994 vacated the magistrate judge’s order, concluding that the ex parte, in
camera hearing was insufficient to protect Charles Register’s Sixth Amendment right to counsel
of his choice. The district court thereafter conducted the full-scale hearing discussed in the text,
infra.
10
Because the record of this Garcia hearing is sealed to protect the attorney in question,
we refrain from quoting from the transcript of the hearing. We have reviewed that transcript
carefully, and we summarize the evidence presented at the hearing, omitting the names of the
witnesses and the participants (other than the defendants in this case) in the events they
described.
19
The most damaging evidence was the testimony of a part-time confidential
informant who had had a number of conversations with Charles Register about drugs.
In particular, the informant testified about one conversation in which Charles Register
admitted having paid part of his attorney’s fees with methamphetamine.11 When
subjected to extensive cross-examination on the subject, the informant reiterated his
prior testimony and rejected the suggestion that he might have misunderstood Charles
Register’s comments. He insisted that it was not possible that Charles Register meant
only that he had paid his attorney with money earned from drugs.12
The government elicited other evidence of more questionable admissibility in
the course of the Garcia hearing. First, two witnesses testified regarding an alleged
plot between a codefendant (who was dismissed on the eve of trial) and the attorney
to submit a false affidavit in order to obtain the return of seized money. One of these
witnesses claimed to have participated in the plan; the other stated that he had
witnessed the planning and a portion of the scheme’s implementation. Second, one
witness stated that after he approached the attorney for legal advice concerning state
law enforcement officials’ disclosure to him of their suspicions of his drug activities,
Bilbrey told the witness that the attorney had told Bilbrey of the officials’ inquiry.
11
Garcia Hearing Tr., R27 at 308-09.
12
Id. at 342.
20
Finally, another witness provided testimony suggesting that the attorney may have
stored a gun at his office that belonged to Charles Register, a convicted felon.
At the conclusion of the witnesses’ testimony, the district judge discussed in
detail with both parties the issues of the admissibility of the testimony at trial and the
standards that he needed to apply to determine whether he should disqualify the
attorney.13 In its order, the district court specifically found that the informant’s
testimony regarding Charles Register’s statement that he paid his attorney’s fees partly
in methamphetamine would be admissible at trial under Federal Rule of Evidence
801(d), which provides that a party’s own admissions are admissible as non-hearsay
evidence if offered against him.14 The district court concluded that this evidence
“alone [was] sufficient” to disqualify the attorney based upon a conflict of interest.15
Although the district court found the other government witnesses to be credible and
stated that “the other alleged acts further link [the attorney] to the criminal
organization,” the district court did not rule on the potential admissibility at trial of
evidence of any of the other alleged incidents.16
13
See Garcia Hearing Tr., R28 at 395-419; R29 at 45-75.
14
Dist. Ct. Order Granting Gov’t Mot. to Disqualify, R12-150 at 9. See Fed. R. Evid.
801(d) (“A statement is not hearsay if . . . (2) . . . [t]he statement is offered against a party and is
(A) the party’s own statement . . . .”).
15
Dist. Ct. Order, R12-150 at 9.
16
Id. at 9.
21
The district court’s ruling with respect to the informant’s testimony was correct:
Charles Register’s alleged statements tended to show by his own admission that he
distributed methamphetamine, one of the crimes the indictment charged him with
committing. The admissibility of evidence of the other alleged wrongful acts was less
clear, even assessing that evidence, as the district court was required to do, without
the benefit of the hindsight we enjoy. Despite the tenuousness of some of the
evidence presented at the hearing, however, we cannot say that the district court
abused its discretion when it disqualified Charles Register’s attorney.
The informant’s testimony alone created a situation analogous to those
presented in Hobson and Fulton; in both cases, the defense attorney faced the serious
possibility of needing to cross-examine a witness who might give evidence
implicating him in his client’s criminal activity. See Hobson, 672 F.2d at 826; Fulton,
5 F.3d at 610. In each case, the court determined that disqualification was
appropriate, and we reach the same conclusion here. It would have been virtually
impossible for the attorney to question the informant without being concerned to a
significant degree about his own interests rather than those of his client. Even if
Charles Register had employed backup counsel to conduct this cross-examination (an
alternative to disqualification that Charles Register proposed), the jury’s perception
of the attorney likely would be tainted beyond repair after the presentation of this
22
testimony. See Hobson, 672 F.2d at 828-29.17 This scenario implicates both of the
concerns that the Supreme Court in Wheat held could justify overriding the
presumption in favor of a defendant’s choice of counsel: the Sixth Amendment’s
“guarantee [of] an effective advocate for each criminal defendant,” Wheat, 486 U.S.
at 159, 108 S. Ct. at 1697, and the courts’ “independent interest in ensuring . . . that
legal proceedings appear fair to all who observe them,” id. at 160, 108 S. Ct. at 1698.
In sum, we reject Charles Register’s argument that the government’s evidence was too
tenuous to justify the district court’s refusal to accept his attempt to waive his
attorney’s conflict of interest.18
17
The fact that the government ultimately did not present the informant’s testimony at
trial does not affect our analysis of the district court’s ruling. As the Supreme Court recognized
in Wheat, the district court must decide this issue prior to trial. See 486 U.S. at 162, 108 S. Ct. at
1699. It follows, therefore, that we also must evaluate the propriety of the district court’s
decision as of that time.
18
The district court classified the conflict of interest based upon the informant’s
testimony as an “actual conflict.” Dist. Ct. Order, R12-150 at 9. In our opinion, the term
“serious potential for conflict of interest” more accurately describes these circumstances
because, although the government represented to the court at the hearing that it intended to call
the informant as a trial witness, an actual conflict of interest would not occur until that situation
developed at trial. This distinction does not affect our analysis, however. As the Supreme Court
stated in Wheat, both actual conflicts and serious potential for conflict can justify
disqualification of a defendant’s chosen attorney. See Wheat, 486 U.S. at 164, 108 S. Ct. at
1700. Indeed, the Wheat court noted that
the district court must be allowed substantial latitude in refusing waivers of
conflicts of interest not only in those rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where a potential for
conflict exists which may or may not burgeon into an actual conflict as the trial
progresses.
Id. at 163, 108 S. Ct. at 1699.
23
We also decline to accept Charles Register’s second argument—that the
government’s conduct suggests that it acted in bad faith to disqualify his attorney for
the sole purpose of depriving him of his Sixth Amendment right to be represented by
his preferred attorney—as a basis for finding that the district court abused its
discretion. We acknowledge that several of the government’s actions raise questions
about its motivation in moving for the attorney’s disqualification. First, the
government previously had attempted to disqualify the attorney on the basis of
multiple representations; it then waited more than a year before filing another motion
to disqualify, this time based upon multiple representations and the attorney’s own
alleged involvement in the defendants’ criminal activities. Second, shortly after the
district court ordered the attorney disqualified, the government filed the superseding
indictment that excluded all RICO charges and, more significantly, omitted all
references to “attorneys” participating in the defendants’ conduct. On the eve of trial,
the government also dismissed the indictment against the codefendant who allegedly
plotted with the attorney to submit a false affidavit to recover seized money. These
actions diminished, if not destroyed, the relevance of much of the testimony that the
government presented at the second Garcia hearing. Finally, of the four incidents it
claimed justified disqualification, at trial, the government elicited evidence only of the
24
attorney’s alleged disclosure to Bilbrey of law enforcement officials’ inquiry into one
witness’s drug activities.
Regardless of these facts, we cannot say that the district court’s decision was
error. Strategic maneuvering by the government to disqualify defense attorneys whom
it considered to be formidable opponents was one of the issues the Supreme Court
addressed in Wheat. Although the Court acknowledged this possibility, it concluded
that this concern did not affect its analysis or alter the degree of deference appellate
courts must afford to trial courts:
Petitioner of course rightly points out that the Government may seek to
“manufacture” a conflict in order to prevent a defendant from having a
particularly able defense counsel at his side; but trial courts are
undoubtedly aware of this possibility, and must take it into consideration
along with all of the other factors which inform this sort of a decision.
Wheat, 486 U.S. at 163, 108 S. Ct. at 1699.
Just as the district court must weigh the likelihood of a conflict of interest
developing without the benefit of hindsight, the government also must consider the
propriety of bringing a motion to disqualify before it knows the precise course that the
trial will take. In this case, the government brought its motion to disqualify the
attorney based upon allegations of his involvement in the defendants’ criminal activity
nearly two years before the trial commenced. In the meantime, a new United States
Attorney took over the case, one defendant pleaded guilty, and the grand jury handed
25
down a superseding indictment. It is unlikely that the government fully had developed
its trial strategy when it filed the motion, and even if it already had done so, we cannot
tell how these and other events influenced one another in the process of generating the
case we look back upon today.
What is clear, however, is that both the government and the district court found
themselves in potentially no-win situations when the attorney’s possible involvement
in the drug conspiracy first began to materialize. Had the government decided not to
bring this information to the court’s attention and had the evidence come to light after
the trial, Charles Register could have argued that the conflict of interest deprived him
of his right to conflict-free counsel. A similar problem arose in United States v.
McLain, 823 F.2d 1457, 1463-64 (11th Cir. 1987), overruled on other grounds by
United States v. Lane, 474 U.S. 438, 106 S. Ct. 725 (1986), in which, unbeknownst
to one of the defendants, his attorney was under investigation for criminal conduct by
the same United States Attorney’s office that was conducting his trial. After the trial
was over, the defendant learned that his attorney and the Assistant United States
Attorney trying the case both had been aware of the investigation, and that the
government had identified the need to postpone indicting the defendant’s attorney
until the conclusion of the trial. We ruled that these events deprived the defendant of
his constitutional rights and overturned his conviction, noting that the attorney’s own
26
interests directly conflicted with those of his client. See id. at 1464 (observing that
the defendant’s attorney’s interests were served by a lengthy trial and a refusal to
engage in plea negotiations with the government). Similarly, had the government here
waited until the trial, or just prior to the trial, to disclose this information to the district
court, the prejudice to the defendant would have been even greater because a
replacement attorney would have had little time to prepare for trial.
The district court faced an equally difficult problem once the government
brought the potential conflict to its attention. As the Supreme Court explained in
Wheat:
[T]rial courts . . . face the prospect of being “whip-sawed” by assertions
of error no matter which way they rule. If a district court agrees to the
. . . representation, and the advocacy of counsel is thereafter impaired as
a result, the defendant may well claim that he did not receive effective
assistance. On the other hand, a district court’s refusal to accede to the
. . . representation may [also] result in a challenge . . . .
Wheat, 486 U.S. at 161, 108 S. Ct. at 1698 (citation omitted); cf. Fulton, 5 F.3d at 614(reversing conviction after holding that district court improperly accepted defendant’s
waiver of an actual conflict of interest). This possibility is one of the factors that led
the Supreme Court to conclude that appellate courts must allow trial judges discretion
in deciding issues of disqualification of counsel due to conflicts of interest; we cannot
conclude, based upon the record before us, that the district court abused that discretion
in this case.
27
C. Notices of Lis Pendens
Charles Register claims that he could not retain Hirsch after the court
disqualified his chosen attorney because the government had filed notices of lis
pendens against his only assets—two pieces of property allegedly valued at
$72,000—in anticipation of seeking forfeiture of those parcels as property used in
connection with the criminal activity alleged in the indictment. He contends that the
district court erred by refusing to provide him with a post-seizure, pre-trial hearing to
determine whether the government had probable cause to demand forfeiture (and thus
to file the lis pendens notices). Charles Register relies upon two tenets of
constitutional law: first, that a defendant has a Sixth Amendment right to use his
assets to hire an attorney of his choice to represent him; and second, that under the
Fifth Amendment, the government must provide due process to those with an interest
in property it seizes. Although both of these assertions are, in the abstract, correct
statements of constitutional rights, neither applies to the circumstances in this case.
Charles Register does have a right to hire counsel of his choice, although as we
explained in Part II.B, the “choice” element of this right is not always absolute. In
Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S. Ct. 2646 (1989),
the Court addressed the argument that the federal criminal forfeiture statute violated
the Sixth Amendment by failing to provide an exception for assets a defendant would
28
use to retain an attorney. Noting its prior holding that “‘[[a]] defendant may not insist
on representation by an attorney he cannot afford,’” Id. at 624, 109 S Ct. at 2652
(quoting Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988)),
the Court bluntly stated, “[a] defendant has no Sixth Amendment right to spend
another person’s money for services rendered by an attorney, even if those funds are
the only way that that defendant will be able to retain the attorney of his choice.” Id.
at 626, 109 S. Ct. at 2652. The Court used a familiar example to illustrate its point:
A robbery suspect . . . has no Sixth Amendment right to use funds he has
stolen from a bank to retain an attorney to defend him if he is
apprehended. The money, though in his possession, is not rightfully his;
the Government does not violate the Sixth Amendment if it seizes the
robbery proceeds and refuses to permit the defendant to use them to pay
for his defense.
Id., 109 S. Ct. at 2652-53.
Assets subject to forfeiture are no different from the stolen bank money; they
are not rightfully the defendant’s. The statute specifically provides that “[a]ll right,
title, and interest in property [subject to forfeiture as] described in subsection (a) of
this section vests in the United States upon the commission of the [criminal] act giving
rise to forfeiture under this section.” 21 U.S.C. § 853(c). The Supreme Court
approved this procedure in Caplin & Drysdale, concluding that “there is a strong
governmental interest in obtaining full recovery of all forfeitable assets, an interest
that overrides any Sixth Amendment interest in permitting criminals to use assets
29
adjudged forfeitable to pay for their defense.” Id. at 631; 109 S. Ct. at 2655; see also
United States v. Bissell, 866 F.2d 1343, 1351 (11th Cir. 1989) (“[T]he right to counsel
of choice belongs solely to criminal defendants possessing legitimate, uncontested
assets. . . . The appellants here had no Sixth Amendment right to use assets to the
extent that those assets belonged to the United States.”). In sum, if Charles Register’s
property was forfeitable, any limitation on his access to those assets could not have
violated his Sixth Amendment rights.
Even accepting this fact, however, Charles Register contends that he had a Fifth
Amendment right to a pre-trial hearing so that the district court could assess the
likelihood that his property would be “adjudged forfeitable” at trial. Caplin &
Drysdale, 491 U.S. at 631, 109 S. Ct. at 2655. Whether the Fifth Amendment requires
such a hearing where the government has seized or restrained property in anticipation
of forfeiture is a question the Supreme Court pointedly has avoided answering. See
United States v. Monsanto, 491 U.S. 600, 615 & n.10, 109 S. Ct. 2657, 2666 & n.10
(1989) (“Monsanto III,” a companion case to Caplin & Drysdale) (where district court
had held pre-trial probable cause hearing on forfeiture issue, holding “that assets in
a defendant’s possession may be restrained in the way they were here based on a
finding of probable cause to believe that the assets are forfeitable,” but refusing to
30
decide “whether the Due Process Clause requires a hearing before a pretrial
restraining order can be imposed.”).
Most circuits have addressed this issue either before or after Monsanto III and
have concluded that the Fifth Amendment requires a pre-trial, though not necessarily
a pre-seizure, probable cause hearing. See United States v. Jones, 160 F.3d 641, 647
(10th Cir. 1998) (requiring such hearing upon motion of the defendant, where
defendant demonstrates that restrained assets are only ones with which she can retain
counsel and provide for family); United States v. Michelle’s Lounge, 39 F.3d 684,
700-01 (7th Cir. 1994); United States v. Monsanto, 924 F.2d 1186, 1203 (2nd Cir.
1991) (“Monsanto IV”); United States v. Crozier, 777 F.2d 1376, 1384 (9th Cir. 1985)
(addressing same issue in context of restraining order entered ex parte under
difference statute and requiring such hearing even where defendant did not allege that
he needed assets to retain counsel); United States v. Lewis, 759 F.2d 1316, 1324-25
(8th Cir. 1985) (same as Crozier but noting that facts implicated Sixth Amendment
right); United States v. Long, 654 F.2d 911, 915-16 (3d Cir. 1981) (same as Crozier).
We appear to be the only circuit holding that, although pre-trial restraint of assets
needed to retain counsel implicates the Due Process Clause, the trial itself satisfies this
requirement. See Bissell, 866 F.2d at 1352-54 (reaching this conclusion after noting
lack of significant delay prior to trial and district court’s ex parte probable cause
31
determination at time it issued warrant authorizing seizure). Although, in the
appropriate case, we perhaps should re-examine Bissell in light of Monsanto III and
its progeny, this case does not present us with occasion to do so because the action
that Charles Register classifies as a “pre-trial seizure” is in fact much less than that.
Here, prior to trial and the jury’s finding of forfeitability, the government did
not “seize,” physically or otherwise, the property in which Charles Register claimed
an ownership interest, and it did not obtain a restraining order from the district court
preventing Charles Register from disposing of these parcels of real estate. Instead, the
government filed a notice of lis pendens pursuant to Florida law, an action that had the
effect of notifying the public (and in particular, prospective buyers or recipients of the
land) that the government claimed an interest in the property.19 Admittedly notices
of lis pendens have the practical effect of impeding an owner’s ability to sell property,
particularly at its (unrestricted) market value. As we recognized in Beefy King Int’l,
19
See Black’s Law Dictionary 932 (6th ed. 1990) (defining notice of lis pendens as “[a]
notice filed on public records for the purpose of warning all persons that the title to certain
property is in litigation, and that they are in danger of being bound by an adverse judgment.”)
(emphasis added); Fla. Stat. Ann. § 48.23(1) (“(a) No action in any of the state or federal courts
in this state operates as a lis pendens on any real or personal property involved therein or to be
affected thereby until a notice of the commencement of the action is recorded in the office of the
clerk of the circuit court of the county where the property is . . . . (b) . . . [T]he filing . . . shall
constitute a bar to the enforcement against the property described in said notice of lis pendens of
all interests and liens . . . unrecorded at the time of filing for record such notice of lis pendens . . .
.”).
32
Inc. v. Veigle, 464 F.2d 1102, 1104 (5th Cir. 1972),20 “[t]he effect of a lis pendens on
the owner of property . . . is constraining. For all practical purposes, it would be
virtually impossible to sell or mortgage the property because the interest of a
purchaser or mortgagee would be subject to the eventual outcome of the lawsuit.”
Still, “the right to alienate the property . . . exist[s].” Chrysler Corp. v. Fedders Corp.,
670 F.2d 1316, 1323 (3d Cir. 1982).
Moreover, even accounting for this practical consequence, notices of lis
pendens affect only one incident of ownership—alienability—whereas other methods
of securing potentially forfeitable property are significantly more restrictive. See
United States v. James Daniel Good Real Property, 510 U.S. 43, 54, 114 S. Ct., 492,
501 (1993) (observing that outright seizure deprives the interest-holder of “valuable
rights of ownership, including the right of sale, the right of occupancy, the right to
unrestricted use and enjoyment, and the right to receive rents,” leaving him only “the
right to bring a claim for the return of title.”). Even the most narrowly drawn
restraining order legally would forbid the interest-holder to sell the property or do
anything to diminish its value.
20
Decisions issued by the former Fifth Circuit before October 1, 1981 are binding as
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
33
These distinctions have led the Supreme Court to conclude that the filing of a
lis pendens does not implicate a property owner’s Fifth Amendment rights. In Kirby
Forest Indus., Inc. v. United States, 467 U.S. 1, 104 S. Ct. 2187 (1984), the United
States filed a notice of lis pendens and complaint of condemnation with respect to a
substantial amount of timberland, and the district court eventually entered judgment
in favor of the landowner in the amount of the value of the land plus interest from the
date the government filed the complaint. Id. at 7-8, 104 S. Ct. at 2192-93. The
Supreme Court struck down the interest award, reasoning that, prior to the moment
that “title passed to the United States,” the government never imposed any legal
restriction on the landowner’s use of the property. Id. at 15, 104 S. Ct. at 2196. The
Court stated:
It is certainly possible . . . that the initiation of condemnation
proceedings, publicized by the filing of a notice of lis pendens, reduced
the price that the land would have fetched, but impairment of the market
value of real property incident to otherwise legitimate government action
ordinarily does not result in a taking. At least in the absence of an
interference with an owner’s legal right to dispose of his land, even a
substantial reduction of the attractiveness of the property to potential
purchasers does not entitle the owner to compensation under the Fifth
Amendment.
Id., 104 S. Ct. at 2197 (citations omitted) (emphasis added) (footnote omitted).
Similarly, in the civil forfeiture context, the Supreme Court has recommended
use of a lis pendens notice as a way for the government to preserve its rights in
34
potentially forfeitable property without need of a hearing and without infringing upon
the interest-holder’s due process rights. See Good, 510 U.S. at 58, 114 S. Ct. at 503(ex parte seizure violates due process, and government can preserve its interests by
using less restrictive means such as filing a notice of lis pendens); see also United
States v. 408 Peyton Road, 162 F.3d 644, 651 (11th Cir. 1998) (en banc) (quoting
Good), cert. denied, — U.S. —, 119 S. Ct. 1500 (1999); Aronson v. City of Akron,
116 F.3d 804, 810-12 (6th Cir. 1997) (interpreting Ohio forfeiture laws modeled on
federal statutes but providing for filing of lien notice with respect to property
allegedly subject to forfeiture; comparing liens to notices of lis pendens and
concluding that neither triggers due process requirements).
In short, a filing of a lis pendens pursuant to state statute does not constitute a
“seizure” and does not affect property interests to an extent significant enough to
implicate the Due Process Clause of the Fifth Amendment. Consequently, Charles
Register was not entitled to a pre-trial hearing on the legitimacy of the government’s
claim to his property under the criminal forfeiture statute.21
21
Although the point does not affect our holding, we note that the remedy Charles
Register sought—the retraction of the notice of lis pendens—would not have had any effect upon
his ability to compensate Hirsch for his services. According to the forfeiture statute,
[a]ny such property [that is subject to forfeiture under subsection (a)] that is
subsequently transferred to a person other than the defendant may [still be subject
to forfeiture], unless the transferee establishes . . . that he is a bona fide purchaser
for value of such property who at the time of purchase was reasonably without
cause to believe that the property was subject to forfeiture under this section.
35
D. Juror Misconduct
On the morning of the third day of trial, Juror Number 6, who was studying to
become a paralegal, sent a note to the court22 expressing concern that she had
overheard Juror Number 9 make a comment to the effect that one of the defendants
must be guilty because he was wearing very expensive clothing. The court inquired
first of Juror Number 6, who stated that she had overheard Juror Number 9’s comment
when she was studying and that the comment had caught her attention because it
sounded inappropriate. The judge then called Juror Number 9 into the courtroom; she
repeatedly denied having formed any opinions as to the guilt of any of the defendants.
She admitted having commented about the appearance of some of the participants but
stated that she merely had observed that one of the witnesses who was surrounded by
“attorneys” was “cute” and that one person was wearing a beautiful suit and very nice
shoes.23 When the judge inquired a final time as to whether she had formed an
21 U.S.C. § 853(c). Hirsch obviously knew that the property in question was subject to
forfeiture, and thus even if Charles Register had managed to liquidate these assets and use the
proceeds to pay Hirsch, once the jury found the property forfeitable, Hirsch would have had to
turn the money over to the government.
22
Juror Number 6 already had sent another note asking whether she could bring a tape
recorder to court so that she could study her lessons during recesses. The court did not allow her
to do so.
23
The defendants contend that Juror Number 9’s comments referred to one of them, but
the record indicates that at least her first remark and perhaps all of them concerned a witness.
See Trial Tr., R38 at 477-79.
36
opinion as to any defendant’s guilt or innocence, she replied, “We have 159 more
witnesses to listen to. So I think it is impossible to form any opinion at this time.”24
The court denied the defendants’ motions to remove Juror Number 9 and, in the
alternative, for a mistrial.
On day eight, the court finished charging the jury at 3:55 p.m. It instructed the
jury to go into the jury room and decide whether it wanted to begin deliberations or
go home for the day and then to let the court know its decision. The jurors left the
courtroom at approximately 4:00 p.m.; shortly thereafter they sent a note stating that
they would like to leave at 4:30 p.m. and reconvene at 9:00 a.m. The judge called the
jurors back into the courtroom and approved this schedule; he then instructed them not
to discuss the case with anyone and stated, “We’re going home tonight. . . . Have a
pleasant evening.”25 The clerk’s notes reflect that the judge excused the jury for the
night at 4:35 p.m.
The next morning, the court began by addressing two notes from Juror Number
6. The first, which she had handed the marshal as she was leaving the afternoon
before, stated “Your Honor, I ask for myself only. I have knowledge of some laws.
Am I permitted to use this knowledge or not to convey to the other jurors? Please let
24
Id. at 478.
25
See Trial Tr., R50 at 2268-69.
37
me know your opinion on this.”26 Juror Number 6 sent the second note when she
arrived that morning; it stated, “There was mentioned [sic] of a search warrant. Why
do we not have it as evidence?”27 The government’s attorney then reported that he
had observed Juror Number 6’s husband speaking with Charles Register’s
girlfriend—whom the court had allowed to sit at the defense table during trial as his
“case agent”—and gesturing at the government’s attorney following closing
arguments the day before. He also reported that Charles Register’s attorney had
approached him after he completed his rebuttal argument and complained that the
government’s attorney had drawn an inference that a search warrant not introduced
into evidence clearly disproved. Defendants’ counsel did not dispute the “gesturing”
assertion and otherwise agreed that these events had transpired. After a short
discussion with counsel about how to proceed, the court instructed the jurors to stop
deliberating.
The district court observed that based upon this information and Juror Number
6’s “inquisitive mind,”28 it was difficult to believe that no external communication had
occurred. The court listened to the parties’ arguments regarding whether it should
26
Trial Tr., R51 at 3.
27
Id. at 4.
28
Id. at 12.
38
inquire of Juror Number 6: the defendants’ attorneys wanted the court to ask why she
raised the question about the search warrant, whereas the government took the
position that the court was authorized to excuse the juror without conducting any
further inquiry. Although the judge stated that he expected her to claim not to have
talked to anyone about the case, he took a brief recess to determine whether the law
allowed him to excuse the juror without questioning her. Relying upon United States
v. Barker, 735 F.2d 1280 (11th Cir. 1984), he decided that the better procedure was
to inquire of the juror, and after consulting with the parties about what questions to
ask, called Juror Number 6 into the courtroom.
When the judge asked Juror Number 6 about her reasons for sending the notes,
she replied that because of her knowledge of the law, she “wanted to see if that search
warrant was directed specifically to the safe itself. And if it was, then I want to know
why they went out of the scope of consent into the other rooms to get the weapons if
they were supposed to go directly to the safe.”29 She stated that she had not had
contact with anyone not connected to the case but that she had been reading her
paralegal materials and attending classes. She denied having discussed the case with
her husband, although she admitted that he had attempted to talk with her about it. At
29
Trial Tr., R51 at 25.
39
the conclusion of this inquiry, the court decided to dismiss Juror Number 6 but
determined that she had not poisoned the other jurors:
I am satisfied by the sequence of events in here that this juror is
not credible. Her demeanor, her answers, and her conduct throughout
the trial, and by the very nature of the inquiries that have been passed in
the notes in here, that she does not appear to be credible.
I will now further enlarge upon my reasons for dismissing her:
There has been no prejudice, as I can see, to the defendants. As we all
know, this jury deliberated for less than a half an hour yesterday. And
deliberations, if any, this morning have not taken more than 15 or 20
minutes of time. The other jurors, the alternate jurors, have been here at
all times and heard everything that has gone on in the courtroom with the
other jury present.
I shall ask that Alternate Juror Number 1 replace this juror, and
that we instruct the jury to begin their deliberations all over again from
the beginning, and start from there.30
All defendants objected both to the removal of Juror Number 6 and the replacement
of her with an alternate juror; they moved for the court either to retain Juror Number
6 or for a mistrial. None proposed proceeding with 11 jurors. The defendants also
requested the court to ask the remaining jurors whether Juror Number 6 had
mentioned the search warrant to them, but it refused.
The court reconvened the entire jury, including the first alternate, and instructed
them that they had to “resume [their] deliberations right from the beginning. This
[alternate] juror was not in the jury room and has not heard any of the discussions that
30
Id. at 27.
40
you had. . . . [Y]ou have to start all over, right from the beginning, as though you are
just being sent out now to discuss this case.”31 The court also reiterated that they were
to follow the law as he had given it to them and that considering their own opinions
about the law or any information other than the court’s instructions would violate their
duty as jurors. Finally, the court informed them that they were not to worry about any
information that was not in evidence, including any reference to a search warrant. The
newly convened jury began deliberating late in the morning on the ninth day of the
trial. The court dismissed them for the day at 4:45 p.m., and they began again the next
morning. The jury reached its verdict at 3:00 p.m. that afternoon.
The defendants challenge three aspects of the district court’s treatment of the
problems that arose with respect to Juror Number 6: (1) the court’s finding that Juror
Number 6 was not credible and decision to dismiss her from the jury; (2) the court’s
refusal to inquire of the other jurors to determine whether they had been prejudiced
by exposure to extrinsic information; and (3) the court’s decision to replace Juror
Number 6 with an alternate juror after deliberations had begun.32
31
Id. at 33-34.
32
The defendants also challenge the district court’s decision to retain Juror Number 9
after Juror Number 6 reported overhearing Juror Number 9 drawing inappropriate conclusions
about one defendant’s guilt on the second day of trial. We have examined the record and find no
error in the district court’s decision to retain Juror Number 9.
41
Federal Rule of Criminal Procedure 23(b) permits the district court “to excuse
a juror for just cause after the jury has retired to consider its verdict.” We review a
district court’s decision to remove a juror for abuse of discretion. See United States
v. Smith, 918 F.2d 1501, 1512 (11th Cir. 1990); United States v. Giarratano, 622 F.2d
153, 157 (5th Cir. 1980). Just cause to discharge a juror exists where the district court
finds evidence that the juror has had improper extrinsic contact, see, e.g., Barker, 735
F.2d at 1282 (excusing juror observed putting her hand on defendant’s shoulder and
smiling), or where it finds that the juror for some other reason cannot decide the issues
fairly, see United States v. Geffrard, 87 F.3d 448, 451-52 (11th Cir. 1996) (excusing
juror who expressed inability to follow judge’s instructions on the law due to religious
beliefs); Smith, 918 F.2d at 1512 (excusing juror who was upset that jury deliberations
would interfere with plans to spend holidays with family). When a juror’s alleged
improper conduct is brought to the court’s attention, the court also enjoys substantial
discretion in “choosing the investigative procedure to be used in checking for juror
misconduct,” United States v. Harris, 908 F.2d 728, 733 (11th Cir. 1990), although
“[j]uror misconduct concerning outside influences must be fully investigated to
determine if any misconduct actually occurred and whether or not it was prejudicial,”
id. We will reverse the district court only if we find that it discharged the juror
42
“without factual support, or for a legally irrelevant reason.” Smith, 918 F.2d at 1512(internal quotation omitted).
We conclude that the district court did not abuse its discretion in deciding to
discharge Juror Number 6 or in refusing to inquire of the remaining jurors to
determine whether they had been tainted by Juror Number 6’s conduct. This case had
been in trial for nearly two weeks when this incident occurred; the judge had had
significant opportunity to observe the jurors and previously had questioned Juror
Number 6 in connection with the incident involving Juror Number 9. From the
evidence that Juror Number 6’s husband had had a conversation with someone close
to the defendant the afternoon before, and that Juror Number 6 immediately asked that
morning about an issue that the defendants had been upset about the day before, the
judge reasonably inferred that a strong possibility existed that Juror Number 6 had
engaged in improper conduct and that the defendants indirectly had conveyed extrinsic
information to her. Following our instructions in prior cases, however, the judge
conducted a brief hearing to determine Juror Number 6’s reasons for asking her
questions, and she admitted having consulted outside information—her books and
classes—during the course of the trial. All of this information was sufficient for the
trial court to discharge her because she had engaged in improper conduct.
43
The defendants emphasize the statement that the judge made before he
questioned her—“Let’s be practical. I expect her to say that she hasn’t talked to
anyone”33—and argue that this conclusion demonstrates that he improperly decided
to excuse Juror Number 6 regardless of her answers to his questions. The district
court should not have speculated about Juror Number 6’s anticipated response to its
questions and should have completed its investigation before drawing conclusions
about the propriety of allowing her to remain on the jury. We note that at the time the
judge made this statement, however, he had ample information to support a decision
to excuse Juror Number 6. Moreover, the court already had complied with our
requirement that it must investigate and hold a hearing on the issue of outside
influence and its possible prejudicial effect before excusing the juror. See Harris, 908
F.2d at 733. In short, our examination of the record reveals both factual and legal
support for Juror Number 6’s dismissal, independent of the judge’s inappropriate
remark. His decision therefore was not an abuse of discretion. See Smith, 918 F.2d
at 1512.
The defendants next contend that the judge’s determination that the jury had
been tainted by extrinsic evidence created both a presumption of prejudice shifting the
burden to the government to establish a lack of prejudice and an obligation to inquire
33
Trial Tr., R51 at 13.
44
of the remaining jurors whether the inappropriate information had influenced their
ability to decide the case impartially. The defendants cite United States v. Martinez,
14 F.3d 543, 550 (11th Cir. 1994) in support of their position. The premise of this
argument—that the court concluded that the jury had been tainted by extrinsic
evidence—is incorrect. In this case, the district court determined that Juror Number
6 had been exposed to inappropriate information, but found no indication that Juror
Number 6 had passed that information along to the other jurors.
This case is easily distinguishable from Martinez, in which we concluded that
the trial court erred in finding lack of prejudice after the jury foreperson sent a note
to the judge stating that the jury had debated information about the case that one juror
read in the newspaper. See 14 F.3d at 547. In Martinez, the district court conducted
a more thorough probe, questioning each juror individually, only after its initial
inquiry of the foreperson (who sent the note) revealed extremely serious concerns
about the jury’s decision-making process:
[The foreperson] . . . reported that she and other jurors discussed [the
offending juror]’s conduct and opinion with her in front of all the jurors.
[The foreperson] also stated that she believed [that juror] influenced at
least one other juror, and that the jurors argued the entire day of March
19, and all morning on March 20 with some jurors accusing [the
offending juror] of harboring prejudice against the government.
45
Id. In contrast with Martinez, the initial investigation that the district court conducted
in this case did not provide any indication that the jury had deliberated under the
influence of extrinsic information.
As the judge noted, Juror Number 6 had little opportunity to influence the
remaining jurors as the jury had spent little time together the afternoon before and that
morning before he ordered them to stop deliberating. The record also reveals that
Juror Number 6’s note about independent legal information inquired as to whether she
could share her knowledge with the other jurors and stated that she was asking for
herself only; that the jurors likely had spent most of the first afternoon developing a
schedule rather than discussing the merits of the case; and that she did not send the
note about the search warrant until the first morning of deliberations. All of this
information supports the reasonableness of the district court’s conclusion that only
Juror Number 6 had been exposed to inappropriate outside contact. Moreover, had
the court inquired into any possible discussions that the jurors may have had about a
search warrant, it risked interfering with their thought processes or overemphasizing
the warrant’s absence and creating a concern about the issue as a result of the inquiry.
Under these circumstances, we find no error in the method the district court employed
to investigate the extrinsic contact or in the conclusion it reached that the jury had not
been tainted.
46
Finally, the defendants argue that the district court committed per se reversible
error by failing to discharge the alternate jurors prior to the start of deliberations and
by impaneling an alternate juror after deliberations had begun. We evaluate this
contention “under a de novo standard, as it presents a question of pure law.” United
States v. Acevedo, 141 F.3d 1421, 1423 (11th Cir. 1998). After the jury charge, the
district court directed the alternate jurors to retire to a separate room while the regular
jurors deliberated. He instructed them not to discuss the case with anyone, including
each other, and told them that they could not leave because the court still might need
their services if one of the regular jurors became unable to complete deliberations.
The government concedes that the district court failed to follow Rule 24(c) of
the Federal Rules of Criminal Procedure, which states: “An alternate juror who does
not replace a regular juror shall be discharged after the jury retires to consider its
verdict.”34 We do not apply a per se reversal standard to Rule 24(c) violations,
34
The defendants contend that the district court also violated Rule 23(b), which
contemplates a jury of 11 members deciding the case if, after deliberations commence, the judge
finds it necessary to dismiss a juror for cause:
Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict
the parties may stipulate in writing with the approval of the court that the jury
shall consist of any number less than 12 or that a valid verdict may be returned by
a jury of less than twelve should the court find it necessary to excuse one or more
jurors for any just cause after trial commences. Even absent such stipulation, if
the court finds it necessary to excuse a juror for just cause after the jury has
retired to consider its verdict, in the discretion of the court a valid verdict may be
returned by the remaining 11 jurors.
Fed. R. Crim. P. 23(b) (emphasis supplied). We conclude that the district court’s impaneling of
the alternate juror in this case did not violate this rule. Although it is true that Rule 23(b) does
47
however. See Acevedo, 141 F.3d at 1423 (citing United States v. Phillips, 664 F.2d
971, 994, 996 n.21 (5th Cir. Unit B Dec. 28, 1981)),35 cert. denied — U.S. —, 119 S.
Ct. 1048 (1999). Instead, we employ the harmless error test and reverse the district
court only where “there is a reasonable possibility that the district court’s violation of
Rule 24(c) actually prejudiced [the defendant] by affecting the jury’s final verdict.”
Acevedo, 141 F.3d at 1424. If the district court took significant procedural
safeguarding measures that effectively “neutralized the possible prejudice” to the
defendants, and if “[o]n the record before us we cannot discern that appellants were
prejudiced by the substitution,” we will uphold the verdict. Phillips, 664 F.2d at 996.
In Phillips, the jury had deliberated for one and half days when one juror
became too ill to continue. Before impaneling one of the retained alternate jurors, the
court took several steps to ensure that the substitution would not prejudice the
defendant: it “sequestered the alternate during the preliminary jury deliberations,”
questioned the jurors individually about their ability to set aside their previous
discussions, and instructed the newly impaneled jury to start its deliberations over
not explicitly sanction substitution of an alternate after deliberations have begun, this rule simply
discusses situations in which 11-member juries are allowed; it does not purport to catalog which
of the full range of possible resolutions of problems presented in the case are permitted and
which are forbidden. Thus, Rule 23(b) does not expressly or by implication prohibit the course
of action the district court chose.
35
Decisions by Unit B of the former Fifth Circuit issued after September 30, 1981 are
binding on this court. See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
48
from the beginning. Phillips, 664 F.2d at 996; see also Barker, 735 F.2d at 1282-83(noting that trial court “meticulously met the demands of Phillips,” including
ascertaining “that the jury could proceed on an impartial basis and begin its
deliberations over again,” explaining the original juror’s excusal in a nonaccusatory
manner, instructing the jurors “to begin anew,” and hearing no expression by any juror
of an inability to follow these instructions).
In this case, the judge also took precautions to make sure that the deliberations
of the newly impaneled jury were fair. The court required the alternates to wait in a
separate room when the original jury retired to deliberate and instructed them not to
discuss the case. After Juror Number 6’s dismissal, the court called the eleven
remaining jurors and the two alternates into the courtroom, reinstructed them on the
importance of applying the law as he had given it to them without considering
information not in evidence, and repeatedly told them that they must start over as if
they never had begun their deliberations because the alternate juror needed to
participate fully in the decision-making process. Although concededly these measures
were not as thorough as those described in Phillips, we note that stronger precautions
may have been necessary in that case because the original jury already had deliberated
for one and a half days when the substitution occurred. Here, in contrast, the jury had
had the case for less than one hour.
49
As the Phillips case emphasizes, the ultimate question we must decide is
whether the record indicates a reasonable possibility of prejudice to the defendants.
Specifically, we noted in Phillips that “[t]he most substantial concern about
substitution of an alternate juror after deliberations have begun is that the alternate
might be coerced by jury members who might have already formulated positions or
viewpoints or opinions.” 664 F.2d at 995. Given the brief time that the original jury
deliberated in this case, and that the record reflects that it spent a significant portion
of that time on procedural, rather than substantive, matters, we do not think the
substitution prejudiced the defendant. The court impaneled the alternate juror late one
morning; the new jury then deliberated the rest of that day, started again the following
morning, and reached a verdict at 3:00 p.m. in which they found each defendant guilty
of some counts and not guilty of others. Under these circumstances, the only
reasonable conclusion we can draw is that the alternate juror participated fully and
impartially in reaching the final verdict. In sum, the district court’s failure to follow
the letter of Rule 24(c) or to avail itself of Rule 23’s 11-member jury option did not
prejudice the defendant, and the court’s error, therefore, was harmless.36
36
Finally, we note a recent proposed change in Rule 24(c) reflecting that the Supreme
Court now considers the exact procedure employed by the district court in this case to be a
perfectly acceptable method of addressing situations in which it must discharge a juror after
deliberations have begun:
Retention of Alternate Jurors. When the jury retires to consider the verdict, the
court in its discretion may retain the alternate jurors during deliberations. If the
50
AFFIRMED.
court decides to retain the alternate jurors, it shall ensure that they do not discuss
the case with any other person unless and until they replace a regular juror during
deliberations. If an alternate replaces a juror after deliberations have begun, the
court shall instruct the jury to begin its deliberations anew.
Fed. R. Crim. P. 24(c)(3) (proposed April 26, 1999). This rule, announced by the Supreme
Court, intimates that such a procedure does not deprive defendants of any rights. It will take
effect December 1, 1999 unless Congress provides otherwise.
51