United States v. Decoud , 456 F.3d 996 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-50318
v. D.C. No.
SEDRICK ROSHUN DECOUD, JR., a/k/a  CR-02-00063-VAP-
Rab; Shaun Dee Merced; and 03
Shaun Vance,
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 04-50374
Plaintiff-Appellee, D.C. No.
v.  CR-02-00063-VAP-
KENDRA TRICE, 12
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 04-50478
Plaintiff-Appellee, D.C. No.
v.  CR-02-00063-VAP-
AUDRA ISRAEL, 8
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
February 13, 2006—Pasadena, California
Filed August 2, 2006
8685
8686 UNITED STATES v. DECOUD
Before: Betty B. Fletcher, Warren J. Ferguson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
Dissent by Judge Ferguson
UNITED STATES v. DECOUD 8691
COUNSEL
Vincent J. Oliver, Los Angeles, California, argued the cause
for appellant Decoud.
Gail Ivens, Glendale, California, argued the cause for appel-
lant Trice.
Richard D. Rome, Van Nuys, California, argued the cause for
appellant Israel.
Craig H. Missakian, Assistant United States Attorney, argued
the cause for the government. With him on the consolidated
brief were Debra Wong Yang, United States Attorney for the
Central District of California, Thomas P. O’Brien, Assistant
United States Attorney, and Nancy Kardon, Assistant United
States Attorney.
OPINION
CALLAHAN, Circuit Judge:
This case involves the Drug Enforcement Administration’s
(“DEA”) investigation and the prosecution of a drug-
8692 UNITED STATES v. DECOUD
trafficking organization in Riverside, California. Sedrick
Decoud, Kendra Trice, and Audra Israel (collectively, “the
appellants”) challenge their convictions and sentences for
engaging in a conspiracy to distribute cocaine base and, in
Decoud’s case, for being a felon in possession of a firearm.
They raise a number of issues ranging from the government’s
non-disclosure of its confidential informant’s identity to the
district court’s dismissal of a juror based on her claimed
inability to discharge her duties in light of her religious views.
We hold that under the various standards that govern our
review, the appellants fail to show that the district court com-
mitted reversible error. The government concedes, however,
that a limited remand is appropriate to give the district court
the opportunity to correct the supervised-release term that it
imposed as part of Israel’s sentence. Accordingly, we affirm
the judgments entered by the district court and remand Isra-
el’s sentence for further proceedings.
I
A. Conspiracy
The investigation beginning in April 2001 uncovered the
appellants’ participation in an enterprise that manufactured
and distributed cocaine base, otherwise referred to as “crack”
cocaine. The organization was run by Cleo Page, Israel’s
then-boyfriend.
Israel met with drug customers at her home and gave them
cocaine base in exchange for money. Israel allowed Page to
store drugs at her home and introduced Page to her sister,
Trice, as someone who could also sell drugs. From then on,
Trice was involved in selling drugs for Page and would
deliver cocaine base to buyers at prearranged locations.
Decoud was also a member of the organization, selling and
manufacturing cocaine base for Page.
UNITED STATES v. DECOUD 8693
B. Wiretap
Six or seven months into its investigation, the government
approached the district court with a wiretap application and
supportive declaration by a DEA Special Agent (“case
agent”), requesting authority to intercept calls to and from a
cellular telephone primarily used by Page. In addition to Page,
the affidavit named Trice as a principal subject of the investi-
gation. The stated purpose of the wiretap was primarily to
investigate an alleged conspiracy to manufacture and distrib-
ute controlled substances. The affidavit detailed the probable
cause for the wiretap, relying on discoveries made during the
pre-wiretap investigation and stating that “Special Agents of
the DEA have received information concerning an organized
cocaine trafficking and distribution network including[ ] Page
. . . and others as yet unknown[ ] from Confidential
Sources[.]” The affidavit also explained that the wiretap was
necessary because normal investigative procedures had been
exhausted and other methods of investigation had already
been used by or were unavailable to law enforcement.
On November 28, 2001, the district court authorized the
initial interception of wire communications, which began the
following day. On December 31, 2001, based on the same
affidavit, the district court authorized continued interceptions
of Page’s cellular telephone through mid-January 2002. The
wiretap uncovered evidence of the conspiracy: mainly inter-
cepted phone calls with Page.
C. Automobile Search and Firearm Possession
In a December 7, 2001 intercepted call, Page stated that
Decoud was “cooking” cocaine base. The DEA then con-
tacted the California Highway Patrol to ask for help in stop-
ping Decoud’s automobile, with the expectation that a stop
would be made as long as there was a legitimate, independent
basis for doing so.
8694 UNITED STATES v. DECOUD
Later that day, a highway patrol officer traveling with a
narcotics canine pulled Decoud over for speeding and having
improperly tinted windows. Once stopped, Decoud provided
the officer with his driver’s license. After running a Depart-
ment of Motor Vehicles check on Decoud’s license, the offi-
cer learned that the license had been suspended on account of
his failure to appear for a prior violation. The officer arrested
Decoud and impounded the automobile pursuant to the Cali-
fornia Vehicle Code, which authorizes a peace officer to take
possession of a vehicle when the driver has been arrested or
cited for driving on a suspended license. CAL. VEH. CODE
§ 22651(p) (West 2001).
The officer conducted an inventory search of the automo-
bile’s contents while Decoud was still present and came
across a cooking pot, duct tape, sandwich-size plastic baggies,
cellular telephones, cash, and a locked metal briefcase. When
asked about the briefcase, Decoud claimed that it did not
belong to him and that he did not know how to open it.
Decoud further stated that he had borrowed the automobile
and that the briefcase belonged to the owner of the automo-
bile. The officer then brought the canine over to the vehicle
and the canine “alerted” to the presence of drugs in the brief-
case. The officer forced it open and found inside a loaded
semi-automatic handgun, a large supply of cocaine base, and
a digital scale.
D. Pretrial Proceedings
On June 6, 2002, a grand jury returned an eight-count
indictment charging the appellants and nine others with vari-
ous drug- and firearm-related offenses. After the nine other
defendants pleaded guilty, the government filed a two-count
superseding indictment charging the appellants with conspir-
ing to possess with the intent to distribute and distributing
more than 50 grams of cocaine base. Decoud alone was
charged in count two with being a felon in possession of a
firearm.
UNITED STATES v. DECOUD 8695
The government also filed a motion under Federal Rule of
Evidence 404(b) to admit prior felony narcotics convictions
for each of the appellants.1 The government sought to admit
Israel’s 1990 conviction for possession of cocaine base for
sale, along with her 1997 and 2001 convictions for possession
of cocaine base. After Israel argued that these convictions
were too prejudicial, the trial court tentatively admitted the
two more recent convictions and excluded the older convic-
tion.
Decoud filed a motion to suppress the evidence derived
through the wiretaps, claiming that the supporting affidavit
showed that the DEA had failed to exhaust standard investiga-
tive techniques, including its use of informants, before seek-
ing a wiretap.2 Decoud argued that the affidavit contained
material misstatements and omissions relating to the alleged
necessity of the wiretap investigation which, if redacted, may
have resulted in denial of the wiretap application. The district
court held a hearing and denied the motion, concluding that
the affidavit “more than adequately explain[s] why the gov-
ernment either did not undertake other methods of investiga-
tion or to the extent that they did or they had, why such efforts
in all likelihood, would not produce the evidence for which
the wiretaps were needed.”
Decoud also filed a motion to suppress the evidence that
the highway patrol officer seized from him, including the con-
tents of the briefcase. After holding a hearing, the district
court issued a written denial of the motion, explaining that the
evidence established that (1) there was probable cause for the
1
Rule 404(b) begins by confirming the prohibition on the use of charac-
ter evidence to prove conforming conduct, but then states that evidence of
other crimes is admissible when the evidence is offered to prove some-
thing other than character, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or acci-
dent[.]” FED. R. EVID. 404(b).
2
Both Israel and Trice joined Decoud’s motion to suppress wiretap evi-
dence.
8696 UNITED STATES v. DECOUD
officer to believe Decoud was speeding and that the tinting on
the automobile’s windows violated the California Vehicle
Code, (2) the officer performed a valid inventory search of the
vehicle and that his subjective motivation to conduct the traf-
fic stop “ ‘play[s] no role in [the] ordinary, probable-cause
Fourth Amendment analysis’ ” (quoting Whren v. United
States, 517 U.S. 806, 813 (1996)), and (3) Decoud lacked
standing to object to the search of the briefcase because he
denied owning it.
At a pretrial status conference, Israel’s counsel made an
oral motion for the government to disclose the identity of its
confidential source (“CS1”). The wiretap affidavit described
CS1 as performing controlled drug buys with Page and two
other defendants who had already pleaded guilty. Israel
wanted CS1 to testify as a defense witness at trial to show that
there was no contact between CS1 and Israel. Although the
government did not dispute the lack of contact, Israel argued
that she should not be limited to eliciting this fact from the
case agent. Recognizing that the lack of contact between CS1
and Israel was undisputed, the court determined that CS1 did
not have material testimony, but indicated that it would con-
sider any authority Israel provided in support of her motion.
The following day, Israel filed a written motion for the dis-
closure of CS1, claiming, without further elaboration, that
“testimony from the government’s confidential source is not
only material to the defendant’s trial, but will provide excul-
patory evidence relating to her innocence of the charges.” The
court denied the motion in a minute order, explaining that the
motion “only contains an utterly conclusory assertion . . . that
the informant’s testimony will include unspecified ‘exculpa-
tory information’ ” and that “[t]his is insufficient to meet the
threshold requirement of showing that disclosure would be
relevant to at least one defense.”
E. Trial Proceedings
Trial commenced on September 30, 2003. In its case-in-
chief, the government called a fingerprint examiner to testify
UNITED STATES v. DECOUD 8697
that prints taken from Israel at the time of her arrest for the
instant offense in 2002 matched a set of prints that had been
obtained from her in connection with a prior arrest. The
examiner did not refer to the origin of the prior prints, which
pertained to Israel’s 1990 narcotics conviction that the district
court had already excluded. The government explained that it
would redact the reference to the 1990 charge and conviction
and the link to a prior conviction on the fingerprint card. The
government did not specifically refer to any of Israel’s prior
convictions and the 1990 fingerprint card was not admitted in
evidence. In addition, the court specifically excluded the 2002
set of fingerprints, reasoning that the fingerprint expert’s testi-
mony was sufficient to establish that all of the fingerprints
belonged to appellant Israel.
After Israel called a number of witnesses, but before Israel
herself testified, it became clear that Israel’s theory of the
case was that she was a user, not a seller, of drugs. The gov-
ernment renewed its argument that Israel’s 1990 conviction
for possession of cocaine base for sale should be admitted
under Rule 404(b), asserting that Israel “opened the door” by
claiming that she was not a drug seller. After extensive argu-
ment, the court excluded all of Israel’s prior convictions under
Rule 404(b).
In response, the government inquired whether the convic-
tions could be used for their impeachment value under Fed-
eral Rule of Evidence 609. The court ruled that the
government could impeach Israel’s testimony with the two
more recent (1997 and 2001) convictions. During her direct
examination, Israel admitted to both convictions, stating that
she was convicted twice for felony narcotics possession
because she was using cocaine base.
On October 9, 2003, after seven days of trial, the jury
began its deliberations. Later that day, the jury sent a hand-
written note by Juror No. 8 and signed by the foreperson
requesting clarification of the jury instructions regarding the
8698 UNITED STATES v. DECOUD
conspiracy count. The note specifically read: “It was stated in
court that in order [for there] to be a conspiracy[,] the profits
have to be shared by the partners in crime, is this true?” Half
an hour later, the jury sent a second handwritten note by Juror
No. 8 and signed by the foreperson. This note requested a
playback of recorded calls “to clarify description and lan-
guage of defendant Israel’s phone conversations.”
Immediately after the court responded to these notes, Juror
No. 8 sent another handwritten note that read: “Dear Judge[,]
Would you please allow me to speak with you privately. I
should have maybe said this sooner. I am sorry but I cannot
go further until I do. Thank you very much in advance.”
The court decided to question the juror in front of the par-
ties and counsel but outside the presence of the other jurors.
The juror explained that she had been struggling throughout
the trial as to whether she could carry out her duties as a juror
and it had become clear that, due to her religious convictions,
she was unable to judge any defendant. The following
exchange transpired between the court and the juror:
Q: Maybe you could tell me what your concern
is[?]
A: Well, I’ve been wrestling with this ever since it
started. I’m to the point now, I can’t sleep at
night. I’m just — I’m a very religious person,
and I have my own set of values and I believe
in the Bible. Completely. It is what I live my
life by. And I just — I’m to the point I cannot
do anything that is going to leave me in a state
of unrest. I feel that I shouldn’t be here. I don’t
feel that I should be judging anyone. And I feel,
I said well, the judge did ask that question, if
there is anyone here very religious. And I
should have spoken up then. I can’t judge
another person. And my Bible states certain
UNITED STATES v. DECOUD 8699
facts that I have to live by and those take prece-
dence. So I wanted to ask, maybe I could be
excused and you could ask someone else to
judge because I can’t do it.
Q: I really appreciate you being — coming for-
ward and telling us this[.] You have done the
right thing by bringing these concerns and send-
ing the note in and so I want to thank you for
doing that, first of all. I think the question that
you are remembering that I asked during voir
dire goes something like, do any of you have —
you can tell I have asked this question a few
times. But that doesn’t mean it’s just not as
important every time. But do any of you have
any strongly held religious, philosophical, or
moral beliefs that would keep you or prevent
you from sitting in judgment o[f] another per-
son? Is that the question you are remembering?
A: Yes, I am.
Q: And as you sit here today, how would you
answer that question?
A: I would say, yes, I do.
Q: Do you find that you are unable to deliberate
with the other jurors, discuss the evidence and
the law?
A: Yes, I do. Because in my studies in the Bible
there are certain rules, and their standards are
different.
Q: And so you are having — you are finding it
impossible to set those standards aside and fol-
low the instructions if there is a conflict?
8700 UNITED STATES v. DECOUD
A: Yes.
The court then opened up the questioning to counsel. Only
Israel’s counsel was interested in inquiring further and the fol-
lowing dialogue ensued between Israel’s counsel and the
juror:
Q: [H]ave you shared these views with the other
jurors during your deliberations?
A: No, I did not.
Q: I noticed that . . . today you wrote three of the
questions. Have you mentioned any of your
feelings or expressed any of your religious feel-
ings to the other jurors concerning these defen-
dants or how they might be judged in the eyes
of God or whoever?
A: No.
***
Q: So at least, in part, you have been willing to dis-
cuss the case with the other jurors because you
have participated to the degree of writing notes
asking for more information; correct?
A: Yes. Actually, we got started and the Holy
Spirit convicted my heart so bad ——
The court interrupted the juror in mid-sentence to instruct her
not to share anything about the jury discussions. After
acknowledging the court’s directive, the juror continued with
her response and additional questioning from Israel’s counsel
followed:
A: There are scriptures that keep coming into my
heart that convicted me. And so that is when I
UNITED STATES v. DECOUD 8701
decided[,] well, you know, I mean, I came
because it was my civic duty.
Q: I’m sorry, . . . I didn’t hear you.
A: I said I came because I felt it was my civic duty.
But then the Holy Ghost convicts me and tells
me that I am to come out of the world. And that
is the way that I have been taught. And that is
the way I try to live every day. And I don’t feel,
I mean, scripture tells me not to sit in judgment
and there are other scriptures that keep coming
up in my mind that I know is God’s Word. And
I have to live by what I know is His Word.
Q: And you did not discuss any of this with any of
the other jurors?
A: No.
Q: How about when you wrote this [third] note?
A: I started to and then I thought well, I can talk
with the judge first. I started to tell them how
I felt, but then I thought it would be better to
talk with the judge first.
Q: How far did you get in telling them how you
felt?
A: I didn’t tell them.
Q: You wrote the note and showed it to your
foreperson though?
A: Yes.
Q: Did he express any — or did he ask you any
questions about it?
8702 UNITED STATES v. DECOUD
A: Yes, he did. But I didn’t answer. I told him that
I wanted to speak with the judge first.
When counsel’s inquiry ended, the judge asked the juror to
wait out in the hallway for a few moments. Once the juror
exited the courtroom, the court stated that the juror should be
excused because she “told us unequivocally that she is unable
to deliberate and unable to follow the court’s instructions[.]”
The court then solicited the perspectives of counsel. Initially
there was no objection and Israel’s counsel stated that “the
court’s conclusion is correct.” Israel’s counsel, however, then
asked the court to declare a mistrial because the juror was the
only “black person” on the jury and her exclusion would be
“grossly unfair” given that all the trial defendants are African-
American. When the court asked Israel’s counsel whether he
had any legal authority to support his argument, he responded
“No.” Counsel for Decoud noted that the juror appeared to
have participated in the jury’s deliberation and speculated that
perhaps she sought to be excused because she felt “ganged up
on” in light of the fact that she was “the only black juror.”
Counsel for Trice shared the same speculations and told the
court that “I have a gut feeling maybe something transpired
in there.”
The court appreciated the defense’s concern but rejected
these suggestions, finding “that this juror would have told us
[if race was an issue] because . . . of her level of intelligence
and articulation.” Nonetheless, the court had the juror return
to answer an additional question: “Is there anything in the jury
room in terms of anything that was said or done by any of the
other jurors towards you that brought you in here today with
this concern?” She responded “No” and the court dismissed
her from the jury with just cause for not being able to dis-
charge her duties. The court commented that the juror’s “re-
plies seemed to be extraordinarily . . . articulate, sincere, and
well thought through” and that “she indicated very positively
that she was not making her request to be excused as a result
UNITED STATES v. DECOUD 8703
of any conduct or anything that was said to her by any other
juror.”
Without waiving their concerns over the juror’s dismissal,
the appellants consented to the court’s substitution of an alter-
nate juror, and the jury was instructed to “set aside and disre-
gard all past deliberations and begin deliberating anew.” The
reconstituted jury began its deliberations from scratch and
returned unanimous special verdicts against the appellants,
finding each guilty on the conspiracy charge. As to Israel and
Decoud, the jury specifically found that they had respectively
conspired to possess more than 50 grams of cocaine base. The
jury also found Decoud guilty on the firearm count.
F. Post-verdict Proceedings
The appellants moved for judgments of acquittal and a new
trial. Four days before the scheduled hearing on the motions,
Decoud filed a motion to further examine the dismissed juror,
in which Trice and Israel subsequently joined. Decoud based
his request on a declaration signed by Israel and Trice’s sister,
who was a defense witness at trial. The declaration claimed
that the juror approached the sister at a bank a couple of
months after the trial and asked what had happened in the
case. The declaration also stated that the juror told the sister
that the juror had been subjected to severe pressure from some
of the other jurors while deliberating. According to the sister,
the juror implied that there may have been some racial pres-
sure to get her off the case and that she was a “holdout” for
acquittal. The declaration also notes that the juror refused to
provide her telephone number, address, or any other form of
contact information to the sister.3
3
The relevant passage of the declaration states:
On or about Tuesday, December 02, 2003, while I was at the
Wells Fargo Bank in Moreno Valley to do banking business, I
saw [the juror]. She also saw me and approached me and asked
8704 UNITED STATES v. DECOUD
After a hearing, the district court denied the motions. In a
written order, the court memorialized its ruling on Decoud’s
motion to further examine the juror, observing that the juror’s
testimony before the court contradicted the declaration’s hear-
say assertion that the juror felt pressured and that there might
have been racial implications to such pressure. The district
court also noted that evidence concerning pressure brought to
bear on a juror — whether it be in the form of a written decla-
ration or live testimony — was inadmissible under Federal
Rule of Evidence 606(b).
On June 24, 2004, the district court sentenced Decoud to a
20-year prison term on count one, a concurrent 10-year prison
term on count two, and a 10-year term of supervised release
following his release from custody. On July 26, 2004, the dis-
trict court sentenced Trice to serve a 10-year prison term fol-
lowed by an eight-year term of supervised release. On
September 27, 2004, the district court sentenced Israel to
serve a 10-year prison term followed by a 10-year term of
supervised release.
me if she knew me because I looked familiar and wondered
where she had seen me. I informed [the juror] that I was the sister
of Audra Israel and Kendra Trice and that I had been in Court
during the trial. [The juror] asked me what had happened in the
case and I explained to her [sic]. Without soliciting any informa-
tion from her, she volunteered that while deliberating, she was
subject to severe pressure from some of the other jurors and for
that and other reasons, she felt compelled to ask[ ] to be excused.
She implied that there might have been some racial implications
to pressure her to get off the case. She further told me that she
was a holdout for acquittal but was severely pressured by the
other jurors and for that reason asked to be excused. She also told
me that the jurors had their minds made up from the beginning
and in fact did not deliberate when they received the case. [She]
did not want to go into detail, but suggested that the defense
attorneys contact her. She refused to give me her telephone num-
ber or address, but suggested that we go through the Court pro-
cess to obtain it.
UNITED STATES v. DECOUD 8705
II
With this background in mind, we consider the appellants’
contentions in the order in which they arose, starting with the
challenged pretrial rulings and concluding with the appel-
lants’ objections to their sentences.
A. The Wiretap Application
[1] In order to obtain a wiretap, the government must dem-
onstrate, inter alia, that normal investigative techniques have
been tried and failed or reasonably appear unlikely to succeed
or to be too dangerous, and must present a full and complete
statement establishing that normal investigative means will
not suffice. 18 U.S.C. § 2518(1)(c), (3)(c); United States v.
McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002). We review the
district court’s finding of necessity in a wiretap application
for abuse of discretion. United States v. Canales Gomez, 358
F.3d 1221, 1225 (9th Cir.), cert. denied sub nom. Fregoso v.
United States, 543 U.S. 908 (2004).
[2] On appeal, Israel restates Decoud’s claim that the gov-
ernment failed to establish the necessity for the wiretap.
Although Israel challenges the case agent’s representations
concerning CS1, she does not give this court any reason to
doubt those representations. As noted, the case agent’s affida-
vit provided that CS1 would no longer be available to make
controlled drug buys because of CS1’s prison term.
[3] We have articulated that the necessity requirement does
not “ ‘mandate[ ] that the government organize the release of
jailed informants before a wiretap will be authorized[.]’ ”
United States v. Staves, 383 F.3d 977, 982 (9th Cir. 2004)
(quoting Canales Gomez, 358 F.3d at 1226), cert. denied, 543
U.S. 1169 (2005). We have further reasoned that “any previ-
ous success from the use of confidential informants is even
less persuasive [in determining necessity] in the context of an
investigation of criminal conspiracy.” Canales Gomez, 358
8706 UNITED STATES v. DECOUD
F.3d at 1226. Thus, Israel’s argument does not present a valid
basis to challenge the wiretap.
Israel has similarly failed to present any factual allegations
to substantiate her conclusory statement that the pen registers
were sufficient or likely to succeed in furthering the govern-
ment’s investigation. In contrast, the case agent’s 54-page
affidavit noted that because pen registers only supplied identi-
fying information regarding calls made from a particular tele-
phone, the technique would neither establish the identity of
the person called nor reveal contents of conversations. The
necessity for the wiretap is evaluated in light of the govern-
ment’s need not merely to collect some evidence, but to “de-
velop an effective case against those involved in the
conspiracy.” United States v. Brone, 792 F.2d 1504, 1506 (9th
Cir. 1986) (Kennedy, J.); see also McGuire, 307 F.3d at 1198-
99 (defining “effective case” as “evidence of guilt beyond a
reasonable doubt”). Therefore, even if Israel had shown that
the pen registers would have been productive to some degree,
that showing would not have extinguished the need for the
wiretap. United States v. Bennett, 219 F.3d 1117, 1122 (9th
Cir. 2000).
[4] Israel also urges that the government’s physical surveil-
lance was beneficial and “could have been continued.” This
view directly conflicts with the affidavit’s statement that on
one particular occasion during surveillance, Page left his resi-
dence and drove directly to (and confronted) law enforcement
agents who were conducting the surveillance. The district
court reasonably found that Page’s knowledge of the surveil-
lance only increased the necessity for law enforcement to
wiretap Page’s telephones. Accordingly, the district court did
not abuse its discretion in finding a necessity for the wiretap.
Canales Gomez, 358 F.3d at 1225.
B. Automobile Search
Decoud asks us to reverse the district court’s denial of his
motion to suppress the fruits of the automobile search. We
UNITED STATES v. DECOUD 8707
review the district court’s denial of his suppression motion de
novo. United States v. Crawford, 372 F.3d 1048, 1053 (9th
Cir. 2004) (en banc). Whether Decoud has standing to assert
a Fourth Amendment claim is reviewed de novo, although
underlying findings of fact are reviewed for clear error.
United States v. Davis, 932 F.2d 752, 756 (9th Cir. 1991).
[5] Decoud argues that the highway patrol officer’s inven-
tory search that led to the discovery of the firearm inside the
briefcase violated the Fourth Amendment because the search
was not conducted in accordance with any standardized policy
and was merely a ruse for general rummaging to find incrimi-
nating evidence. Although a briefcase is property in which
one may have a Fourth Amendment interest, Decoud fails to
appreciate that he gave up any expectation of privacy in the
briefcase by unequivocally disclaiming ownership. See United
States v. Nordling, 804 F.2d 1466, 1469-70 (9th Cir. 1986)
(stating that a defendant relinquishes any expectation of pri-
vacy after disclaiming interest in the property); see also
United States v. Cella, 568 F.2d 1266, 1283 (9th Cir. 1977)
(explaining that denying ownership of property when ques-
tioned constitutes abandonment of that property). As a result,
we reject his protestations against the search of the briefcase.
See Abel v. United States, 362 U.S. 217, 241 (1960) (holding
that one who has voluntarily abandoned property cannot sub-
sequently complain about its search and seizure).
C. Non-severance
We now turn to Decoud’s argument that the district court
erred in trying him along with Trice and Israel. Almost a year
before the government filed the superseding indictment, Trice
brought a motion to sever, challenging the joinder of co-
defendants in the original indictment. At an October 2002
hearing, the district court denied Trice’s motion. It is this rul-
ing that Decoud challenges on appeal.
A district court’s denial of a motion to sever is reviewed for
an abuse of discretion. United States v. Pitner, 307 F.3d 1178,
8708 UNITED STATES v. DECOUD
1181 (9th Cir. 2002). “The test for abuse of discretion by the
district court is ‘whether a joint trial was so manifestly preju-
dicial as to require the trial judge to exercise his discretion in
but one way, by ordering a separate trial.’ ” United States v.
Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987) (quoting
United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982)).
Initially, we must determine whether Decoud has waived
any challenge to the district court’s non-severance determina-
tion. Decoud claims that he preserved the issue for appeal by
filing his own severance motion. But the district court’s
docket does not indicate that Decoud filed a severance
motion, and the parties do not state that Decoud joined Trice’s
severance motion. We must therefore conclude that Decoud
has waived his challenge to the district court’s ruling.
[6] Assuming arguendo that he filed a severance motion or
joined Trice’s motion, Decoud has nevertheless waived this
issue because he failed to renew a severance request at the
close of the government’s case-in-chief or at any time during
trial. We have held that a defendant waives his right to appeal
the denial of his severance motion if he does not renew the
motion at the close of evidence. United States v. Sherwood,
98 F.3d 402, 409 (9th Cir. 1996) (as amended). The reason for
requiring a defendant to renew his severance motion is to “en-
able[ ] the trial court to assess more accurately whether a join-
der is prejudicial at a time when the evidence is fully
developed.” United States v. Plache, 913 F.2d 1375, 1379
(9th Cir. 1990).
A defendant, however, will not be found to have waived his
challenge if he can show either that he diligently pursued sev-
erance or that renewing the motion would have been an
unnecessary formality. Sherwood, 98 F.3d at 409. Decoud
seeks to come within this exception by claiming that the sev-
erance motion was accompanied by the introduction of preju-
dicial evidence that need not have been raised again at the
trial stage of the proceedings. He cites evidence that both
UNITED STATES v. DECOUD 8709
Trice and Israel interacted with Page and were involved in the
drug conspiracy. Decoud concludes that the jury likely trans-
ferred “the clear guilt of Trice and Israel” to Decoud.
Decoud’s theory of prejudice is misconceived. The mere
fact that a defendant has a better chance of acquittal if tried
separately does not require severance. See United States v.
Jenkins, 785 F.2d 1387, 1394 (9th Cir. 1986) (holding that,
absent a showing of manifest prejudice, a co-conspirator is
not entitled to severance by merely suggesting or demonstrat-
ing a comparative advantage in separate trials). The inevitable
consequence of any joint trial is that the jury will become
aware of evidence of one crime while considering a defen-
dant’s guilt or innocence of another crime. But this does not
amount to an abuse of discretion on the part of the trial court.
As the Supreme Court has noted, there is a strong preference
in the federal system for joint trials. Zafiro v. United States,
506 U.S. 534, 537 (1993); accord FED. R. CRIM. P. 8(b) (pro-
viding that defendants who are alleged to have participated in
the same act of transaction or in the same series of acts or
transactions may be indicted and tried together). Furthermore,
here the trial court gave limiting instructions for the jury to
consider the evidence against each of the appellants and to
separately evaluate each one’s guilt. See United States v. Fer-
nandez, 388 F.3d 1199, 1243 (9th Cir. 2004) (specifying that
a district court’s limiting instructions for the jury to “evaluate
each defendant’s guilt separately . . . more than sufficient[ly]
guard against the possibility of prejudice to the defendants”).
There is no indication that the jury was unable to separately
evaluate the case against each trial defendant. Thus, Decoud’s
severance argument, if not waived, is not meritorious.
D. Non-disclosure of Informant
Notwithstanding Israel’s acknowledgment that the govern-
ment’s confidential informant, CS1, had no contact with the
appellants, Israel contends that the district court abused its
discretion in denying disclosure of information about CS1. A
8710 UNITED STATES v. DECOUD
trial court’s refusal to compel disclosure of a confidential
informant’s identity is reviewed for an abuse of discretion.
United States v. Henderson, 241 F.3d 638, 646 (9th Cir. 2000)
(as amended). Non-disclosure is an abuse of discretion when
“an informer’s identity, or [ ] the contents of his communica-
tion, is relevant and helpful to the defense of an accused, or
is essential to a fair determination of [the accused’s] cause[.]”
Roviaro v. United States, 353 U.S. 53, 62 (1957). The defen-
dant bears the burden of showing a need for disclosure.
United States v. Wong, 886 F.2d 252, 256 (9th Cir. 1989).
[7] While Israel postulates that CS1 could have testified to
a lack of any knowledge about her involvement in the con-
spiracy, CS1’s lack of knowledge on this point was undis-
puted and could have been elicited at trial through a
stipulation or the testimony of the case agent. Also, as the dis-
trict court observed, such testimony would have been of lim-
ited value to Israel, for the informant’s non-knowledge would
have done little to refute the government’s otherwise persua-
sive evidence of Israel’s affirmative involvement in the con-
spiracy. Furthermore, the government did not rely on CS1 in
any aspect of its case against Israel; CS1 was not involved in
any transaction contained in her indictment, there is no dis-
pute about the facts to which CS1 could have testified, and the
involvement of CS1 in securing the government’s wiretap is
insufficient to compel disclosure of the informant’s identity.
See United States v. Williams, 898 F.2d 1400, 1402 (9th Cir.
1990).
[8] For these reasons, Israel has not carried her burden of
proving that the disclosure of the informant’s identity is “es-
sential to a fair determination” of her case. Roviaro, 353 U.S.
at 62. We must therefore conclude that the district court did
not abuse its discretion in declining to compel the identifica-
tion of the confidential informant.
E. Evidentiary Rulings
The appellants also question various evidentiary rulings
made by the district court during trial. A trial court’s evidenti-
UNITED STATES v. DECOUD 8711
ary rulings are generally reviewed for an abuse of discretion.
Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997);
United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004)
(noting a district court’s “ ‘wide discretion’ ” (quoting United
States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983))). Under
this standard, an evidentiary ruling will be reversed only if
such error “ ‘more likely than not affected the verdict.’ ”
United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004)
(quoting United States v. Angwin, 271 F.3d 786, 798 (9th Cir.
2001)).
1. Fingerprint Expert’s Trial Testimony
Israel takes issue with the district court’s admission of the
fingerprint expert’s testimony that the fingerprints taken in
connection with Israel’s 1990 conviction matched the finger-
prints she submitted in 2002. Although the 1990 fingerprint
card was never introduced in evidence and the district court
excluded the 2002 fingerprints, Israel claims that the district
court did not go far enough and should have granted her
request to strike the expert’s testimony because that testimony
was “highly prejudicial” as it linked her to the excluded 1990
conviction.
[9] Israel is mistaken because the fingerprint expert did not
inform the jury of her 1990 conviction. The government asked
the expert to compare the prints taken at Israel’s arrest in
2002 with the fingerprint card from the 1990 conviction, but
the source of the card was not disclosed to the jury. The testi-
mony concerning the 1990 fingerprint card was limited to the
following exchange between government counsel and the
expert:
Q: What is on page 2?
A: Page 2 is the 35 prints from the Department of
Justice given [sic] the booking number and the
date of arrest, when the subject was printed.
8712 UNITED STATES v. DECOUD
Q: Now, who does page 2 relate to?
A: This [sic] prints belong to the prints that I com-
pared to the submitted prints.
Q: Focusing just on page 2, who do those prints
belong to?
A: They belong on [sic] the subject name is Audra
Rene Trice.
Q: And did you compare those prints on page 2 to
the prints that were submitted to you on page 3?
A: Yes, I did.
Q: And — did you come to any conclusions?
A: That it was the same. They were a match and it
belonged to the same subject.
As this excerpt illustrates, the jury only heard the fingerprint
expert compare fingerprints taken at Israel’s 2002 arrest with
fingerprints on another document involving an arrest and con-
clude that the two sets matched. The record shows that the
expert said nothing else. Based on this record, the district
court did not abuse its discretion by declining to strike the
fingerprint-comparison testimony.
Moreover, assuming that there was error, Israel has failed
to establish that such error more likely than not affected the
jury’s verdict. As Israel testified to having been convicted on
two prior occasions, the expert’s indication that she had been
previously arrested was not materially prejudicial. We find no
reason to disturb the district court’s evidentiary ruling.
UNITED STATES v. DECOUD 8713
2. Israel’s Prior Convictions
Israel also objects to the district court’s decision allowing
the government to impeach her testimony with her two prior-
possession convictions under Rule 609.4 She states that these
prior convictions bore no relevance to the instant offense of
conspiracy and that their prejudicial value greatly outweighed
their probative value. The government demurs, asserting that
Israel has waived her right to challenge the admission of these
prior convictions by testifying about them on direct examina-
tion.
[10] The government is right. In Ohler v. United States,
529 U.S. 753 (2000), the Supreme Court pronounced that a
defendant may not appeal an evidentiary ruling allowing the
admission of evidence of a prior conviction if the defendant
herself introduced the prior conviction, even if the defendant
properly objected to the ruling. Id. at 760. In Ohler, the dis-
trict court had ruled “that if Ohler testified, [the] prior convic-
tion would be admissible under Rule 609(a)(1).” Id. at 755.
When the case was before us on direct appeal, we had con-
cluded that the defendant had waived her objection to the
admissibility of a prior conviction by introducing evidence of
the conviction during her direct examination. 169 F.3d 1200(9th Cir. 1999). The Supreme Court granted certiorari, 528
U.S. 950 (1999), and affirmed our decision.
The Court made it clear that, where tough trial decisions
are concerned, a defendant must live with the consequences
that flow from his choices. 529 U.S. at 758-59. In Ohler, this
meant that after trying and failing to keep Rule 609 evidence
out, the defendant who preemptively introduced her prior con-
4
When impeaching the testimony of the accused, Rule 609(a)(1) pro-
vides that evidence of a prior conviction is admissible if that crime was
punishable by imprisonment in excess of one year and if the court deter-
mines that the probative value of the evidence outweighs its prejudicial
effect. FED. R. EVID. 609(a)(1).
8714 UNITED STATES v. DECOUD
viction to lessen its sting waived her right to challenge the ini-
tial ruling on appeal. Id.[11] Israel’s predicament is the same in all material
respects. The record indicates that Israel knew that she had to
make the difficult election of whether to reveal or to conceal
evidence of her prior conviction on direct examination. She
deliberately sought to lessen the impact of the prior convic-
tion by mentioning it in her direct testimony rather than
allowing the government to introduce it on cross-examination.
See id. at 758 (explaining that a defendant may not “short-
circuit” the government’s right to decide whether to use evi-
dence against her by offering the evidence herself and “still
preserve its admission as a claim of error on appeal”). Ohler
is clear: once a defendant “preemptively introduces evidence
of a prior conviction on direct examination[, she] may not on
appeal claim that the admission of such evidence was error.”
Id. at 760. We must therefore conclude that Israel has waived
the opportunity to appeal this evidentiary ruling.
3. Case Agent’s Trial Testimony
The case agent testified at trial and provided the jury with
background information about the investigation, focusing on
the beginning of the investigation in April to July 2001 when
CS1 was involved. She described how she used CS1 to gather
information about cocaine-base sales in a certain area and also
noted the drug purchases that CS1 made from Page and
another co-conspirator. Based on the intercepted phone calls
and her observations, the case agent also testified about the
role played by several co-conspirators, but not about the roles
of the appellants here. At several points, the defense objected
on grounds of hearsay and lack of foundation. The district
court discussed striking certain portions of the testimony, but
ultimately did not do so. It did, however, offer to give a limit-
ing jury instruction, should the defense so request, that the
case agent’s testimony was not admitted for the truth of the
UNITED STATES v. DECOUD 8715
matter asserted. The defense never proposed a limiting
instruction, and the court did not provide one sua sponte.
Israel now argues that the case agent’s background testi-
mony constitutes inadmissible hearsay and lacks proper foun-
dation. Israel claims that this evidence was not within the case
agent’s personal knowledge and was hearsay relayed by oth-
ers. This contention is not borne out in the record.
The case agent testified about her direct interactions with
CS1, which included participating in surveillance on the
transactions to which she testified. In addition, the case agent
gave a description of the records she reviewed, such as
telephone-subscriber information for numbers called by CS1,
and told the jury that she had listened to each one of the
approximately 7,000 intercepted calls involved in the case.
Further, when it came to identifying the roles various individ-
uals played in the conspiracy, she described the nature of her
investigation for each individual.
Israel’s objections, on the other hand, lack specificity.
Israel does not identify what aspects of the case agent’s testi-
mony lack proper foundations or constitute inadmissible hear-
say. Israel only alleges in a conclusory manner that the
testimony was inadmissible and should have been excluded
by the district court. Israel also doesn’t explain why she or the
other appellants did not take up the district court on its offer
to provide the jury with a limiting instruction that could have
mitigated, if not negated, Israel’s hearsay concerns. Further,
she provides no case law or other authority to support her
argument. Accordingly, we must conclude that Israel has
failed to show that the district court abused its discretion in
not limiting the case agent’s testimony.
4. Expert Testimony on Drug Codes
Israel next takes issue with the district court’s decision to
allow the testimony of another witness, the government’s
8716 UNITED STATES v. DECOUD
drug expert. She objects to the drug expert’s explanation that
certain words and phrases caught on tape were actually code
for drug deals and drug use.
[12] In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), the Supreme Court set forth the guiding
principle that “under the Rules [of Evidence] the trial judge
must ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Id. at 589. In order
to assist the trial courts with this task, the Court suggested a
flexible, factor-based approach to analyzing the reliability of
expert testimony. Id. at 593-95. Although not an exclusive
list, these factors include: (1) whether a method can or has
been tested; (2) the known or potential rate of error; (3)
whether the methods have been subjected to peer review; (4)
whether there are standards controlling the technique’s opera-
tion; and (5) the general acceptance of the method within the
relevant community. Id. at 593-94.
[13] The Court has further held that the trial judge’s
responsibility to keep unreliable expert testimony from the
jury applies to all expert testimony, not only to “scientific”
testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148
(1999). In other words, this “basic gatekeeping obligation”
applies with equal force in cases, such as this one, where
“non-scientific” experts wish to relate specialized observa-
tions derived from knowledge and experience that is foreign
to most jurors. Id. Kumho Tire also makes clear that “the trial
judge must have considerable leeway in deciding in a particu-
lar case how to go about determining whether particular
expert testimony is reliable.” Id. at 152. We therefore review
the district court’s decision not to exclude the government
expert’s testimony for abuse of discretion that requires rever-
sal only if that decision is “ ‘manifestly erroneous.’ ” United
States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (quot-
ing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)).
Prior to the expert’s testimony, the district court held a
Daubert hearing at which the expert explained the methodol-
UNITED STATES v. DECOUD 8717
ogy that he used to interpret each of the handful of disputed
words. The expert explained that for words that he had not
heard before, he based his interpretation of such words on
three factors: (1) his training and experience; (2) each word
in the context of the specific phone call; and (3) each phone
call in the context of other phone calls that he understood.
Israel expresses doubt over the reliability of the expert’s
methods of interpretation, specifically disputing the expert’s
testimony that he knew the meaning of such slang terms as
“diznerty,” “woop-wop,” “weezy,” and “shake my speezy.”
Israel maintains, citing United States v. Hermanek, 289 F.3d
1076 (9th Cir. 2002), that the district court erred in admitting
the testimony because the court relied solely on the expert’s
general qualifications without receiving a sufficient explana-
tion of the methods used to arrive at his interpretations of
words that he had not previously encountered.
Not so. The defendants in Hermanek appealed a district
court’s decision to allow the government’s expert to interpret
words and phrases not commonly used in the drug trade that
he had not previously heard. 289 F.3d at 1090. The govern-
ment at trial had described only the expert’s method for inter-
preting words commonly used in the drug trade, words with
which the expert was familiar. Id. at 1093. We found that the
government’s explanation “offer[ed] no basis for assessing
the reliability of [the expert]’s interpretation of words and
phrases encountered for the first time in this case.” Id. We
also expressed concern with the government’s offer of proof
because “at least one of the words listed on the government’s
offer under the rubric of ‘commonly used’ drug terms with
which [the expert] was ‘familiar’ . . . was not familiar to [the
expert].” Id. We held that the district court improperly relied
on the expert’s general qualifications without assuring that his
interpretations of particular encoded words were supported by
reliable methods.5 Id. at 1090. Nonetheless, we concluded that
5
The Hermanek panel limited its holding by stating, “[w]e do not hold
that a government expert . . . can never be qualified to interpret coded drug
8718 UNITED STATES v. DECOUD
“the error, although serious, was harmless” in consideration of
all the other incriminating evidence that was properly before
the jury. Id. at 1096.
[14] Here, in addition to setting forth the expert’s experi-
ence, the government focused on the expert’s methodology
for interpreting new encoded words, thereby complying with
Hermanek.6 See id. at 1094 (noting that the government expert
“failed to explain in any detail the knowledge, investigatory
facts and evidence he was drawing from”). Thus, the concerns
with the government expert’s testimony expressed in Her-
manek are not present here. We resolve that the district court
faithfully followed the strictures of Hermanek in fulfilling its
gatekeeping function under Daubert and did not err in allow-
ing the government’s expert to testify as to the meaning of the
new encoded words.
F. Sufficiency of Evidence
We next encounter Decoud and Israel’s argument that the
district court erred in denying their motions for a judgment of
acquittal on the conspiracy charge. They claim that the evi-
dence presented at trial was insufficient to support the jury’s
verdict.
[15] We review claims of insufficient evidence de novo.
conversations using words and phrases experienced for the first time in the
prosecution at issue[,]” and that “[t]he advisory committee’s note to Rule
702 . . . approves such expert testimony where the ‘method used by the
agent is the application of extensive experience to analyze the meaning of
the conversations.’ ” Hermanek, 289 F.3d at 1096.
6
For example, the expert gave a lengthy explanation of how he inter-
preted “diznerty” based on his understanding of a common speaking style
in “most black communities” where they “will put an ‘e’ or ‘ez’ in words,
“such as, ‘I’m at his housez,’ something like that. Just as a certain slang,
certain words. And here[,] ‘diznerty’ is just a slang on dirty” (emphasis
added).
UNITED STATES v. DECOUD 8719
United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir.
2004). In a criminal prosecution, “[t]here is sufficient evi-
dence to support a conviction if, ‘viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)). To sustain a federal conspir-
acy conviction, the government must prove “ ‘(1) an
agreement to accomplish an illegal objective, (2) coupled with
one or more acts in furtherance of the illegal purpose, and (3)
the requisite intent necessary to commit the underlying sub-
stantive offense.’ ” United States v. Chong, 419 F.3d 1076,
1079 (9th Cir. 2005) (quoting United States v. Pemberton,
853 F.2d 730, 733 (9th Cir. 1988)). Once a conspiracy is
established, the government can prove a defendant’s “know-
ing participation” with evidence of the defendant’s “connec-
tion with the conspiracy.” United States v. Delgado, 357 F.3d
1061, 1066 (9th Cir. 2004).
1. Trial Evidence Against Decoud
Decoud argues that the government failed to present any
evidence that he engaged in an agreement to commit a crime
with anyone else. He concedes that he “prepared drugs for
sale,” but maintains that he did so on his own and not as part
of any conspiracy. He claims that there was no proof that the
money he obtained from sales was distributed to others
involved in a conspiracy. He further claims that there was no
evidence of him having a telephone conversation with Page or
another member of the conspiracy concerning matters of an
illegal nature. He questions how he could have had an agree-
ment with others in a conspiracy when there is no evidence
that he spoke to anyone in the conspiracy.
The record, however, provides a different account of the
evidence. The government introduced several intercepted
calls between Page and Decoud in which they discussed
cocaine base. For example, in one series of calls, Decoud and
8720 UNITED STATES v. DECOUD
Page discussed a batch of cocaine base that Decoud had pre-
pared for Page to sell to “Capone.” Capone had complained
about the quality of the drugs and Page and Decoud agreed to
replace them. At one point, Page referred to Decoud as “his
boy,” which the decoding expert translated to mean his part-
ner, associate, or cook. There was evidence that Decoud also
met with Capone to deliver the substitute batch. In a later call,
made while Decoud was in Page’s apartment cooking another
batch of cocaine base, Decoud confirmed that he had replaced
Capone’s drugs. In yet another call, Page told Decoud that his
customers were unhappy with the batch of cocaine base that
Decoud had cooked and told Decoud to fix another batch.
Decoud agreed to do so. The jury also learned of a call where
Decoud gave Page step-by-step instructions on how to correct
another batch of cocaine base.
[16] While it may be true that there was no evidence of
Decoud sharing profits, he fails to cite any authority that sug-
gests this fact negates his membership in the conspiracy. The
government, on the other hand, cites United States v. Boswell,
372 F.2d 781, 783 (4th Cir. 1967), for the proposition that “a
sharing of the fruits of the conspiracy has never been held . . .
to be an essential element of the offense.” Of course, a divi-
sion of profits may be an integral part of a conspiracy and
proof of the same. Id. The point, however, is that we know of
no authority that holds that evidence of a division of profits
is essential for a conviction of conspiracy, and accordingly we
may affirm Decoud’s conspiracy conviction without evidence
that the money obtained from drug sales was distributed to
others involved in the conspiracy. Id. In light of the over-
whelming evidence that Decoud prepared the drugs sold by
Page’s drug organization, we hold that there was sufficient
evidence to support the jury’s verdict. Jackson, 443 U.S. at
319; Shipsey, 363 F.3d at 971 n.8.
2. Trial Evidence Against Israel
Israel also argues that the evidence presented against her
was too isolated to link her to the overall conspiracy, analo-
UNITED STATES v. DECOUD 8721
gizing her case to United States v. Umagat, 998 F.2d 770 (9th
Cir. 1993). In Umagat, we held that there was insufficient evi-
dence to permit a trier of fact to impute to two of the defen-
dants the knowledge of a conspiracy to smuggle marijuana.
Id. at 774. We reasoned that the indictment alleged an overall
conspiracy joined after its inception by both defendants and
that the evidence showed each defendant was involved in a
single transaction which was only a part of the ongoing con-
spiracy. Id. at 773-74. We further noted that the government
did not offer any other evidence as to the defendants’ knowl-
edge of the conspiracy. Id. at 774.
The instant case is readily distinguishable because Israel’s
involvement was not limited to a single transaction, and the
multiple intercepted calls between Israel and Page established
Israel’s knowledge of the overall conspiracy. The phone calls
demonstrate that Israel played a variety of roles in Page’s
drug distribution business. For instance, in one call, Israel
responded to Page’s complaint about business losses and
offered to introduce Page to her connections in the drug trade.
In another call, Israel acted as a go-between for Page, arrang-
ing for Trice to sell Page’s drugs. The jury also heard calls
evidencing that Israel facilitated a drug transaction between
Page and Trice, delivered drugs for Page, and stored Page’s
drugs at her house.
The government also presented the jury with evidence of
Israel’s participation in a series of calls involving the sale of
a quarter kilo of cocaine base for $5,400. At times during
those calls, Israel referred to the drugs with various slang
words, such as “crumbs” and “little ball,” and also expressed
the view that the money generated from the sale belonged to
her and Page jointly.
[17] The totality of the trial evidence demonstrates that
Israel worked with Page in his drug-trafficking operation,
shared the profits from the illicit drug sales, knowingly stored
crack at her house, met with customers, and, at Page’s direc-
8722 UNITED STATES v. DECOUD
tion, took money from customers and delivered drugs to them.
Accordingly, there was more than sufficient evidence to sup-
port the jury’s verdict. Jackson, 443 U.S. at 319; Shipsey, 363
F.3d at 971 n.8.
G. Dismissal of Juror
We now arrive at Israel and Trice’s shared contention that
they were denied their right to a fair and impartial jury when
the district court dismissed Juror No. 8. They also challenge
the district court’s decision not to hold an evidentiary hearing
on the issue in light of their new-trial motions.
1. Invited Error
The government asserts that these claims are waived under
the invited-error doctrine because Israel’s counsel agreed with
the district court’s decision to dismiss Juror No. 8 due to her
testimony that religious views prevented her from determin-
ing a defendant’s guilt.7 The invited-error doctrine does not
apply here. First, Israel’s counsel in no way invited the
“error.” Second, on the immediate heels of his concurring
statement that the court was “correct” in excusing the juror,
Israel’s counsel launched into an argument for a mistrial
because the juror was “the only black person” on the jury and
her exclusion would be “grossly unfair” given that the appel-
lants are all African-American. Counsel for Trice contempo-
raneously voiced the same concerns. Thus, we perceive no
barrier to our review of the claims on their merits.
2. Dismissal for Just Cause
[18] Israel and Trice recognize that religious convictions
preventing a juror from rendering a verdict amount to good
7
An error is waived and unreviewable when a defendant both invites the
error and affirmatively relinquishes or abandons a known right. United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).
UNITED STATES v. DECOUD 8723
cause for that juror’s dismissal. They argue, however, that
Juror No. 8 lied to the district court about her reason for want-
ing to be excused and that she, in fact, was able to deliberate
impartially.
United States v. Symington, 195 F.3d 1080 (9th Cir. 1999),
on which the appellants rely, concerned a scenario that is very
different from the present case. There, on the eighth day of
deliberations following a three-month trial, the district court
received a note from the jury indicating that “ ‘[o]ne juror has
stated their [sic] final opinion prior to review of all counts.’ ”
Id. at 1083. The district court sent back a note reminding the
jurors “of their duty to participate in deliberations with each
other, but emphasizing also that each juror should make up
his or her own mind on the charges.” Id. Several days later,
the jury sent another note to the court indicating that one juror
“cannot properly participate in the discussion” for various rea-
sons including that juror’s “[i]nability to maintain a focus on
the subject of discussion[, i]nability to recall topics under dis-
cussion[, and r]efusal to discuss views with other jurors.” Id.The district court then questioned each juror individually. Id.
at 1083-84. Every juror (except the one that was the subject
of the complaint) stated that there was one particular juror
who refused to explain her views, stating she did not “have to
explain herself to anybody.” Id. at 1084.
Our decision noted that the “statements of some jurors indi-
cated that their frustration with [the juror] may have derived
more from their disagreement with her on the merits of the
case, or at least from their dissatisfaction with her defense of
her views.” Id. We also pointed out that the juror “stated that
she was prepared to continue deliberating” and “that the other
jurors’ frustration with her might be because ‘[she] can’t
agree with the majority all the time . . . .’” Id. Expressing con-
cern over the sanctity of jury deliberations, we held “that if
the record evidence discloses any reasonable possibility that
the impetus for a juror’s dismissal stems from the juror’s
views on the merits of the case, the [district] court must not
8724 UNITED STATES v. DECOUD
dismiss the juror.”8 Id. at 1087 (emphasis in original). Apply-
ing this standard, we reversed the judgment of conviction,
concluding that “there was a reasonable possibility that [the
juror]’s views on the merits of the case provided the impetus
for her removal.” Id. at 1088.
[19] Here, Juror No. 8 asked to be excused because of her
religious convictions and, when specifically asked by the
judge, she confirmed that there had been no improprieties by
the other jurors. E.g., United States v. Burrous, 147 F.3d 111,
117 (2d Cir. 1998) (permitting the removal of a juror for just
cause due to the juror’s indication during deliberation that he
is unable to render a verdict because of a “personal religious
objection”); United States v. Geffrard, 87 F.3d 448, 451 (11th
Cir. 1996) (affirming the dismissal of a juror who wrote in a
letter to the judge that her religious beliefs made her feel that
she could not “live with a verdict of guilty for any of the
accused on any of the charges”). As the record amply illus-
trates, the district court took care in inquiring into the circum-
stances that gave rise to the juror’s request for discharge,
making sure that there was no reasonable possibility that the
juror harbored some other reason for discharge, such as her
views on the merits of the case. When defense counsel ques-
tioned the juror, once again there was absolutely nothing to
suggest that the juror’s problem stemmed from anything other
than her observance of religion. Indeed, defense counsel
remarked that the court was “correct” in dismissing her.
Because substantial evidence supports the district court’s
assessment that the juror was unable to further deliberate and
8
We clarified in Symington that “the standard is any reasonable possi-
bility, not any possibility whatever.” Symington, 195 F.3d at 1087 n.5
(emphasis in original). Understanding that “ ‘anything is possible in a
world of quantum mechanics[,]’ ” we purposefully avoided fixing a stan-
dard that would “prohibit juror dismissal [only where] there is no possibil-
ity at all that the juror was dismissed because of her position on the
merits[.]” Id. (quoting United States v. Watkins, 983 F.2d 1413, 1424 (7th
Cir. 1993) (Easterbrook, J., dissenting)). As we observed, such an unat-
tainable standard would “prohibit dismissal in all cases.” Id.UNITED STATES v. DECOUD 8725
perform her duties as a member of the jury, we find no error
in the district court’s dismissal of the juror.9
3. Post-verdict Challenge to Juror’s Dismissal
In addition, Israel and Trice claim that they were entitled
to a post-verdict evidentiary hearing with the dismissed juror
present in light of the declaration that their sister submitted
before sentencing. As noted, the sister declared that she had
coincidentally run into the dismissed juror at a bank and
believed that the juror had implied that racial motivations fac-
tored into her desire to be excused from the jury and that she
had been a holdout for acquittal.
[20] We review a district court’s denial of an evidentiary
hearing concerning a dismissed juror for an abuse of discre-
tion. United States v. Saya, 247 F.3d 929, 934 (9th Cir. 2001).
A district court is not required to hold an evidentiary hearing
upon every allegation of juror misconduct, and in determining
whether to hold a hearing, it should consider the content of
9
Moreover, the district court was in the best position to evaluate the
juror’s credibility when she stated that her religious convictions prevented
her from deliberating in the case. See United States v. Beard, 161 F.3d
1190, 1194 (9th Cir. 1998) (stressing that the decision to excuse a juror
is committed to the district court’s discretion and must be affirmed unless
the appeals court is left with the definite and firm conviction that the dis-
trict court committed a clear error of judgment); accord Nichols v. Azteca
Rest. Enters., Inc., 256 F.3d 864, 871 (9th Cir. 2001) (giving “great defer-
ence to district court findings relating to credibility” and conferring
“ ‘even greater deference’ ” when the factual findings rest on credibility
determinations (quoting Anderson v. City of Bessemer, 470 U.S. 564, 575
(1985))). As noted, Juror No. 8 in no uncertain terms told the judge that
the jurors had not said or done anything to motivate her request to be
excused from the jury. The district court believed the juror’s testimony to
be extraordinarily articulate and sincere, and found that she entertained no
undisclosed pretext. We conclude that the district court acted entirely
within its discretion in believing the juror’s stated reason for dismissal.
Id.; see also Wainwright v. Witt, 469 U.S. 412, 424 (1985) (permitting a
juror’s discharge for cause if a particular belief prevents or substantially
impairs the performance of the juror’s duties).
8726 UNITED STATES v. DECOUD
the allegations, the seriousness of the alleged misconduct, and
the credibility of the source. Id. at 934-35.
In the case at bar, at the hearing on the new-trial motions,
the defense requested that the court arrange for the dismissed
juror to be present for further examination. The district court
declined to do so for two independent reasons. First, it noted
that counsel already had an opportunity to question the juror
at the time when she sought to be discharged from the jury.
Second, the court held that a further inquiry into the juror’s
participation in the jury’s deliberations would be improper
under Rule 606(b).10
On appeal, Trice and Israel do not argue that the district
court abused its discretion in denying a hearing based on its
and counsel’s previous examination of the juror. Rather, they
focus their challenge on the district court’s Rule 606(b) ratio-
nale. Trice argues that Rule 606(b) does not prohibit jurors
from testifying about evidence of racial bias and relies on
United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001).
Although Henley implied in dictum that evidence of racial
prejudice might be exempt from Rule 606(b)’s restriction on
post-trial evidence, 238 F.3d at 1120-21, Henley was specifi-
10
Rule 606(b) provides in relevant part:
Upon an inquiry into the validity of a verdict . . . , 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 . . . 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 to the jury’s attention or
whether any outside influence was improperly brought to bear
upon any juror. Nor may . . . evidence of any statement by the
juror concerning a matter about which the juror would be pre-
cluded from testifying be received for these purposes.
FED. R. EVID. 606(b).
UNITED STATES v. DECOUD 8727
cally referring to racial bias “ ‘unrelated to the specific issues
that the juror was called upon to decide.’ ” Id. at 1120 (quot-
ing Rushen v. Spain, 464 U.S. 114, 121 n.5 (1983) (per
curiam)); see also Williams v. Price, 343 F.3d 223, 237 (3d
Cir. 2003) (Alito, J.) (detecting Henley’s “dictum” and point-
ing out that “[t]he actual holding in Henley did not concern
racial bias”). Indeed, Henley presented an instance where a
juror made racist remarks while carpooling to and from the
trial. Henley, 238 F.3d at 1114. Here, to the extent that the sis-
ter’s declaration alluded to racial matters, it did not reflect
evidence of racial bias against the defendants and related
purely to the dismissed juror’s position on the merits of the
defendants’ guilt or innocence.11 There was no allegation of
racial epithets indicating a racially-biased juror, as there had
been in Henley. Id.; cf. United States v. Heller, 785 F.2d 1524,
1527 (11th Cir. 1986) (concluding that ethnic bias warranted
a mistrial upon discovery that deliberations consisted of
numerous anti-Semitic slurs and jokes made by a juror about
the Jewish defendant that were met with “gales of laughter”).
Rather, at most the declaration claimed that the dismissed
juror “implied” that she felt racial pressure because she was
a “holdout.” While the dismissed juror and the appellants are
African-American, this fact alone does not warrant piercing
the secrecy and sanctity of jury deliberations or disrupting the
finality of the process. See Brewer v. Hall, 378 F.3d 952, 956
(9th Cir.) (citing Remmer v. United States, 350 U.S. 377, 382
11
Rule 606(b) clearly bars consideration of the declaration’s allegation
that the juror said that she was subjected to pressure by other jurors for
being a “holdout for acquittal.” See United States v. Briggs, 291 F.3d 958,
961 (7th Cir. 2002) (barring evidence of one juror being “ ‘intimidated’ by
other jurors into finding [the defendant] guilty”); see also United States v.
Brito, 136 F.3d 397, 414 (5th Cir. 1998) (deeming evidence of internal
coercion inadmissible per Rule 606(b)); United States v. Tallman, 952
F.2d 164, 167 (8th Cir. 1991) (“To admit proof of contentiousness and
conflict to impeach a verdict under Rule 606(b) would be to eviscerate the
rule.”); United States v. Norton, 867 F.2d 1354, 1366 (11th Cir. 1989)
(noting that “alleged harassment or intimidation of one juror by another
would not be competent evidence to impeach the guilty verdict”).
8728 UNITED STATES v. DECOUD
(1956) (instructing that “it is the law’s objective to guard jeal-
ously the sanctity of the jury’s right to operate as freely as
possible from outside unauthorized intrusions”)), cert. denied,
543 U.S. 1037 (2004). The sanctity of the jurors’ deliberations
would be seriously compromised if they were subject to post-
verdict examination because a juror, who did not participate
in the verdict, felt some racial pressure when she successfully
sought discharge on a distinct and adequate ground.
What is more, if Rule 606(b) is removed from the consider-
ation of the appellants’ motions for a new trial, the inade-
quacy of the declaration is still apparent. Indeed, the
speculative and vague nature of the declaration precludes a
finding that the district court abused its discretion. In Fields
v. Woodford, we rejected a defendant’s claim that several
jurors were racially prejudiced against him because “assum-
ing that the declarations upon which he relies are admissible,
they are vague and speculative; they do not show that any rac-
ist statements were made.” 315 F.3d 1062, 1063 (9th Cir.
2002) (as amended). Fields compared the “lack of any sub-
stantial evidence” before it to other cases finding sufficiently
weighty evidence: Henley, 238 F.3d at 1114, in which a juror
had declared that “the niggers are guilty,” and Tobias v.
Smith, 468 F. Supp. 1287, 1289-90 (W.D.N.Y. 1979), in
which the jury foreperson had stated “[y]ou can’t tell one
black from another.” Fields, 315 F.3d at 1063 (emphasis
added).
[21] As in Fields, the declaration at issue neither alleges
that any racist statements were made nor provides “substantial
evidence” that any of the jurors were racially prejudiced
against the appellants. Id. at 1062. The declaration sets forth
only the sister’s belief that the dismissed juror “implied that
there might have been some racial implications to pressure
her to get off the case.” In view of the declarant’s obvious
bias in favor of her sisters (Israel and Trice), the fact that her
trial testimony appears to have been rejected by the jury,12 and
12
The district court may have doubted the sister’s credibility because
she had testified at trial that her sisters would never have anything to do
with drugs, a perspective that the jury obviously rejected.
UNITED STATES v. DECOUD 8729
Juror No. 8’s thorough examination and contrary testimony at
the time of her discharge when deliberation events were fresh
in her mind, we conclude that the district court did not abuse
its discretion in declining an evidentiary hearing. See United
States v. Shyrock, 342 F.3d 948, 974 (9th Cir. 2003) (uphold-
ing district court’s refusal to conduct a further evidentiary
hearing based on its finding regarding the affected juror’s
credibility), cert. denied, 541 U.S. 965 (2004).
Trice also attempts to liken her case to United States v.
Brande, 329 F.3d 1173 (9th Cir. 2003). That case involved
one juror reporting post-trial that another juror, after express-
ing the view that he was unable to find anyone guilty on
account of personal religious beliefs, had been approached by
district court personnel and questioned about whether he
would be able to find a defendant guilty of a crime. Id. at
1175. The juror stated that he would. Id. In remanding for an
evidentiary hearing, we emphasized that the credibility of the
allegation was not in doubt, the juror’s susceptibility to
improper influence was heightened because the contact
involved a court officer, and there was no opportunity to
address the ex parte contact at trial because it came to light
only after the verdict. Id. at 1177.
[22] Several of the critical factors in Brande are absent
here. First, Juror No. 8 was not a member of the jury that con-
victed the appellants. Second, Juror No. 8 was not approached
by a court officer or anyone from the government. Third, as
we have already noted, the sister’s declaration is speculative
at best. Finally, unlike Brande, Juror No. 8’s dismissal was
fully considered by the trial judge before the jury — with a
substituted alternate juror — convicted the appellants. Thus,
even if the declaration were admissible under Rule 606(b), the
district court did not abuse its discretion in declining to hold
an evidentiary hearing.13
13
Contrary to some language in the dissent, we do not condone racial
prejudice within a jury. Rather, conscious of our role as an appellate court,
8730 UNITED STATES v. DECOUD
H. Sentencing Issues
Finally, we reach the appellants’ various challenges to their
respective sentences.
1. Booker Claims
Decoud claims error under United States v. Booker, 543
U.S. 220 (2005), arguing that the district court wrongly based
his sentence on a judge-made finding that his conspiracy
offense involved cocaine base rather than what he alleges to
be powder cocaine.14 Decoud also complains that the judge
determined the amount of drugs attributed to him. Employing
a similar rationale, Trice argues that the district court should
not have relied on one of her prior convictions to enhance her
sentence because she had not admitted to the fact of that prior
conviction nor was it found by a jury. We review these claims
we hold that the district judge did not abuse her discretion in determining
that the appellants failed to make a sufficient showing of possible racial
bias to warrant an evidentiary hearing. The district court had before it only
an affidavit by a sister of two of the appellants. The sister alleged that dur-
ing a chance encounter over two months after the trial, the dismissed juror
had “implied that there might have been some racial implications to pres-
sure her to get off the case,” and had suggested “that the defense attorneys
contact her.” The record contains no affidavit from either the dismissed
juror or defense counsel. On this record, we are forced to conclude that the
district judge — mindful of the dismissed juror’s firmly expressed reason
for being excused and her specific denial that any other juror had influ-
enced her decision to seek to be excused, and of the potential impropriety
of questioning jurors about the content of their deliberations — did not
abuse her discretion in declining to hold an evidentiary hearing.
14
While this appeal was pending, the Supreme Court handed down its
decision in Booker, holding that the federal sentencing guidelines as con-
stituted violated a defendant’s Sixth Amendment right to a jury trial. 543
U.S. at 245. That outcome followed from the conclusion that, in a manda-
tory sentencing regime, the Sixth Amendment precludes a judge from
enhancing a sentence beyond the statutory maximum based on facts that
are not found by a jury or admitted by the defendant. Id. at 232. The
Court, however, remedied the perceived constitutional infirmity by render-
ing the guidelines merely advisory rather than mandatory. Id. at 245.
UNITED STATES v. DECOUD 8731
for plain error. See United States v. Ameline, 409 F.3d 1073,
1084 (2005) (“If an eligible party seeks resentencing under
Booker[ ], we will then engage in the plain error analysis[.]”).
Decoud’s sentencing challenge is not well taken because it
is based on the false premise that a judicial finding enhanced
his sentence. The record unmistakably reveals that Decoud
was sentenced on the jury’s special verdict, which found
beyond a reasonable doubt that Decoud conspired to possess
for purposes of distribution more than 50 grams of a mixture
containing cocaine base. This finding, combined with
Decoud’s prior felony drug conviction, authorized the
mandatory-minimum sentence of 20-years imprisonment. See
21 U.S.C. § 841(b)(1)(A)(iii) (mandating a minimum sentence
of 20 years for a second-time offender who is convicted of
participating in a narcotics transaction involving at least 50
grams of cocaine base). Moreover, we have determined that
“Booker does not bear on mandatory minimums[.]”15 United
States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005).
With respect to Trice’s sentencing challenge, she acknowl-
edges that existing law forecloses her argument but nonethe-
less seeks to assert her position. She correctly notes that
Booker specifically exempted prior convictions from the cate-
gory of enhancing facts that “must be admitted by the defen-
dant or proved to a jury beyond a reasonable doubt.” Booker,
15
Decoud also objects to the sentencing enhancement he received for
possessing a firearm in relation to the drug offenses with which he was
charged. He argues that there was no basis for this enhancement in the
jury’s verdict. Any Booker error that may have occurred, however, was
harmless, as the statutory minimum would have applied to Decoud regard-
less of the enhancement for possession. United States v. Cardenas, 405
F.3d 1046, 1048 (9th Cir. 2005); see also United States v. Ameline, 409
F.3d 1073, 1084 (9th Cir. 2005) (en banc) (noting that a remand is neces-
sary to correct Booker errors only “where it is not possible to reliably
determine from the record whether the sentence imposed would have been
materially different had the district court known that the Guidelines were
advisory”).
8732 UNITED STATES v. DECOUD
543 U.S. at 244. This court has held the same, observing that
Booker does not affect sentencing enhancements based on the
fact of a prior conviction. United States v. Delaney, 427 F.3d
1224, 1226 (9th Cir. 2005). Accordingly, Trice’s argument
fails under the weight of this authority.
2. Limited Remand
Israel seeks a limited remand for the district court to correct
an error regarding her term of supervised release even though
she did not raise the issue below. She notes that the district
court sentenced her to a supervised-release term of 10 years
based on a prior conviction that the government withdrew.
She asserts that the proper term is five years.
[23] When a defendant raises an issue on appeal that was
not presented to the district court, the court of appeals may
review only for plain error. FED. R. CRIM. P. 52(b); see also
United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001)
(reviewing for plain error a challenge to sentencing that the
defendant did not raise before the district court). Here, how-
ever, the government concedes that it withdrew the prior con-
viction and has no objection to our vacating Israel’s term of
supervised release and allowing the requested remand.
Accordingly, a limited remand appears appropriate to afford
the district court an opportunity to reconsider Israel’s
supervised-release term.
III
For all of the foregoing reasons, the appellants’ convictions
and sentences are AFFIRMED and appellant Israel’s sen-
tence is REMANDED for reconsideration of her supervised-
release term.
UNITED STATES v. DECOUD 8733
FERGUSON, Circuit Judge, dissenting:
I respectfully dissent from the majority’s approval of the
District Court’s failure to hold an evidentiary hearing regard-
ing whether racial bias infected the jury that sat in judgment
of Appellants Israel and Trice. See maj. op. at 8725-29.
Appellants Israel and Trice are both African-American. The
original jury impaneled in their case had only one African-
American member, Juror No. 8. This same juror, after a day
of deliberations, asked to be dismissed. She claimed she could
not continue to deliberate, despite the fact that she had been
actively participating in deliberations and sending out ques-
tions to the Judge up until that point, because her religious
beliefs prevented her from sitting in judgment of another per-
son. The District Court accepted Juror No. 8’s explanation
and dismissed her. An alternate juror, who is not African-
American, was then impaneled. The jury began deliberations
anew, eventually finding each Appellant guilty of the charges
against her.
After the Appellants were convicted, they moved for a new
trial based on an affidavit submitted by their sister, Shondra
White. According to the affidavit, a couple months after the
trial, while in a local bank, White was approached by Juror
No. 8, who recognized White from the trial. After White iden-
tified herself, Juror No. 8 told White she had been subject to
severe pressure in the jury room, and that pressure, not her
religious beliefs, led her to ask to be dismissed. According to
White, Juror No. 8 “implied that there might have been some
racial implications to pressure her to get off the case.” Despite
this troubling information, the District Court denied the
Appellants’ request for an evidentiary hearing to further ques-
tion Juror No. 8 regarding what role, if any, racial prejudice
played in the jury deliberations.
I dissent on two grounds. First, the majority misconstrues
United States v. Henley, 238 F.3d 1111 (9th Cir. 2001), which
8734 UNITED STATES v. DECOUD
persuasively reasons that racial prejudice is a mental bias that
is never acceptable in the jury room. Instead of disregarding
Henley, we should apply its reasoning to hold that Federal
Rule of Evidence 606(b) does not bar testimony regarding
evidence of racial prejudice within the jury. Second, White’s
affidavit, combined with the circumstances of Juror No. 8’s
dismissal, sufficiently raises the prospect that the jury may
have been tainted by racial bias to require an evidentiary hear-
ing on the matter. If called to testify, Juror No. 8 may confirm
that nothing untoward occurred during deliberations. Until
such an evidentiary hearing is held, however, the specter of
racial prejudice hangs over the trial and undermines public
confidence in the verdict. See Developments in the Law —
Race and the Criminal Process: VII. Racist Juror Misconduct
During Deliberations, 101 Harvard L. Rev. 1595, 1600
(1988) (“Permitting defendants to expose racially tainted
deliberations gives the public—particularly minority citizens
—more reason, not less, to trust the final results of the crimi-
nal justice system.”).
I.
We refuse to be a society in which a defendant’s guilt or
innocence is decided by the color of her skin. Accordingly,
the Sixth Amendment entitles every defendant to an impartial,
unbiased jury. See Henley, 238 F.3d at 1120. We have held
that the Sixth Amendment is violated by “the bias or prejudice
of even a single juror.” Id. (quoting Dyer v. Calderon, 151
F.3d 970, 973 (9th Cir. 1998)). The danger caused by such
bias or prejudice, and the need to take extra measures to pro-
tect against it, has been repeatedly recognized. See, e.g., Tur-
ner v. Murray, 476 U.S. 28, 35-36 (1986); Batson v.
Kentucky, 476 U.S. 79 (1986).
To be consistent “with the broad goal of eliminating racial
prejudice from the judicial system,” evidence of racial bias
within jury deliberations should be admissible. Henley, 238
F.3d at 1120. The majority, however, would use Rule 606(b)
UNITED STATES v. DECOUD 8735
to prohibit the introduction of some evidence of racial preju-
dice. This is inconsistent with the Supreme Court’s holding
that, despite Rule 606(b), “[a] juror may testify concerning
any mental bias in matters unrelated to the specific issues that
the juror was called upon to decide . . . .” Id. (quoting Rushen
v. Spain, 464 U.S. 114, 121 n.5 (1983)). In Henley we cor-
rectly reasoned that Rule 606(b)’s general bar on inquiry into
the deliberations of the jury does not apply to testimony relat-
ing to racial prejudice because “[r]acial prejudice is plainly a
mental bias that is unrelated to any specific issue that a juror
in a criminal case may legitimately be called upon to deter-
mine.” Henley, 238 F.3d at 1120.1
The majority attempts to distinguish the present case from
Henley by arguing that “to the extent that [White’s] declara-
tion alluded to racial matters, it did not reflect evidence of
racial bias against the defendants and related purely to the dis-
missed juror’s position on the merits of the defendants’ guilt
or innocence.” Maj. op. at 8727. The majority apparently
would allow racial prejudice within the jury as long as there
is no explicit evidence that the bias was directed at the defen-
dants. Such a position is untenable, and violates the basic
premise that racial bias should never play a role in the
decision-making process of a jury. If the prejudice of other
members of the jury forced Juror No. 8., who was inclined to
vote for acquittal, off the case, then that prejudice is no less
troubling than racial bias aimed directly at the defendants
because such prejudice effectively decided the outcome of the
case. Furthermore, if the racial prejudice present in the jury
room was strong enough to pressure a fellow juror to seek dis-
missal, it is very likely such bias also invaded the remaining
1
Racial bias may also be characterized as “extraneous prejudicial infor-
mation” that has an effect on the jury. By its own terms, Rule 606(b)
admits such evidence. Fed. R. Evid. 606(b) (“except that a juror may tes-
tify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention”); see also Henley, 238 F.3d at
1120; Tobias v. Smith, 468 F. Supp. 1287, 1290 (W.D.N.Y. 1979).
8736 UNITED STATES v. DECOUD
jurors’ deliberations regarding the African-American defen-
dants.
Henley dictates the result in this case. We should hold that
Rule 606(b) does not bar the admission of juror testimony and
other evidence regarding racial prejudice within the jury.
II.
Based on White’s declaration and the circumstances of
Juror No. 8’s dismissal, the Appellants are entitled to an evi-
dentiary hearing regarding the existence and extent of racial
bias within their jury.
In determining whether to hold a hearing, a district court
“must consider the content of the allegations, the seriousness
of the alleged misconduct or bias, and the credibility of the
source.” United States v. Saya, 247 F.3d 929, 935 (9th Cir.
2001). Holding an evidentiary hearing is “usually preferable,”
unless “the court [knows] the exact scope and nature of the
. . . extraneous information.” Id. (internal quotation marks and
citation omitted).
Here, the seriousness of the alleged misconduct, racial prej-
udice within the jury, weighs heavily in favor of holding an
evidentiary hearing. Nonetheless, the majority would dismiss
such grave allegations as vague and speculative based on
flawed comparisons with cases that differ significantly from
this case in their procedural postures.
First, the content of White’s declaration is no more vague
or speculative than statements that have justified other eviden-
tiary investigations. For instance, a judge stopped a trial and
questioned the jury after a bare allegation that “ethnic slurs”
had been made in the jury room. See United States v. Heller,
785 F.2d 1524, 1525 (11th Cir. 1986).
UNITED STATES v. DECOUD 8737
The majority compares White’s statement2 against several
statements of racial bias discussed in other cases within this
Circuit, and finds it lacking in some unquantified degree of
specificity. See maj. op. at 8726-29. In most of the cases cited
by the majority, however, an evidentiary hearing had already
been held, which produced more specific and detailed state-
ments of racial prejudice. See Henley, 238 F.3d at 1113 (“the
district court conducted evidentiary hearings on the motions
for a new trial”); Heller, 785 F.2d at 1525 (noting specific
statements of racial bias were only revealed after the judge
stopped deliberations and questioned the jury). And in Fields
v. Woodford, the case on which the majority most heavily
relies, it is not clear whether the appellant was seeking a new
trial, or an evidentiary hearing, based on the scant evidence of
racial bias. 315 F.3d 1062, 1063 (9th Cir. 2002) (as amended).
This distinction in remedy sought is relevant since, as the
cases cited by the majority demonstrate, far less specific evi-
dence is needed to justify an evidentiary hearing than is
required for the grant of a new trial. Here, the Appellants are
not seeking a new trial, but merely an evidentiary hearing to
explore in more detail the content of Juror No. 8’s implied
allegations of racial bias. The very purpose of that hearing
would be to elicit the more specific statements of prejudice
the majority is searching for.
Second, the strength of the allegations in White’s declara-
tion must be viewed in the context of the entire trial. Accord-
ing to the statement, Juror No. 8 implied that racial prejudice
may have been behind her decision to seek dismissal from the
jury. Such an inference is circumstantially corroborated by the
actual dismissal of Juror No. 8, the only African-American
juror. At the time of her dismissal, Juror No. 8 claimed she
could not judge another person due to her religious beliefs.
2
The majority also calls into question White’s credibility. Maj. op. at
8728-29. The District Court, however, never explicitly found White not to
be credible. Nor should we assume White’s statements about her interac-
tion with Juror No. 8 to be untrue.
8738 UNITED STATES v. DECOUD
During voir dire, however, she testified her beliefs would not
interfere with her ability to deliberate. Furthermore, up until
her request for dismissal, Juror No. 8 had been actively delib-
erating with the other jurors, as evidenced by two signed
questions and requests for additional information that she sub-
mitted to the District Court.
Despite the fact that Juror No. 8 initially denied that the
other jurors influenced her decision to request dismissal, that
denial was called into question by her later statements to
White and the circumstances of her dismissal. Only an evi-
dentiary hearing can reconcile Juror No. 8’s contradictory
assertions. See United States v. Jackson, 209 F.3d 1103, 1109
(9th Cir. 2000) (“The discrepancy between the juror’s state-
ments during the voir dire and his later statement to the inves-
tigator calls for a resolution that can be reached only through
an evidentiary hearing.”).
Accordingly, I find the District Court abused its discretion
by denying Appellants’ request for an evidentiary hearing and
would remand for a hearing on Appellants’ allegations of
racial prejudice within the jury.