Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

MEMORANDUM^** 

Jose Heriberto Ortiz-Salazar appeals from the district court's denial of his motion for a new trial following conviction for conspiracy to possess and distribute cocaine and for possession and aiding and abetting possession of cocaine with intent to distribute the same. We affirm.

The grounds for Ortiz-Salazar's motion for a new trial was a telephone call in which a Deputy United States Marshal, who thought she was speaking with a stenographer, asked to be notified "when the jury goes to lunch, so we can go out and get some lunch for ourselves and the prisoners." In fact one of the jurors had answered the telephone, and the Deputy Marshal's statement inadvertently revealed that Ortiz-Salazar and his codefendant were in custody during the trial. The Deputy Marshal immediately notified the judge of the conversation, whereupon he held a hearing in chambers, attended by counsel, at which the Deputy Marshal explained the circumstances and content of the telephone call. Defense counsel declined the opportunity to question the Deputy Marshal. Ortiz-Salazar later moved for a new trial arguing that revelation of his detention status had denied him the presumption of innocence in violation of his right to due process and that the district court erred by failing to hold an evidentiary hearing to determine whether the juror who answered the phone conveyed the information to the other jurors.

The question Ortiz-Salazar raises on appeal is whether the district court was required by United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979), to question the jurors before concluding that there was no reasonable possibility that they were prejudiced by the unauthorized communication. The answer is no. Vasquez and related decisions merely require the court to hold a hearing when it finds a reasonable possibility that the jury was prejudiced by the communication but has insufficient information on which to make that determination. See United States v. Madrid, No. 86-1019-21 and 86-1041, slip op. at 3501 (9th Cir. March 22, 1988). When the court does hold a hearing, the purpose is to "determine the precise nature of the extraneous information." United States v. Bagnariol, 665 U.S. 877, 885 (9th Cir. 1981). The court is not allowed to investigate the subjective effect of the communication upon the jurors, but is limited to ascertaining the extent to which the jurors heard or discussed information not introduced at trial and other circumstances of the jury breach. Vasquez, 597 F.2d 194. The court must reach its own judgment about the reasonable possibility of harm without the benefit of juror opinions as to whether or not they were influenced. Id.

In Vasquez an official court file containing concededly prejudicial and inadmissible evidence material to facts in controversy was left in the jury room during deliberations. Id. at 193. If the jurors read and discussed the contents of the file, there necessarily was a reasonable possibility that it could have affected the verdict. Hence, a hearing was required to determine whether they did in fact read and discuss it. Id. at 194. No similar determination was necessary in this case.

Here, the district court held a hearing, without participation of the jurors, to determine the circumstances and content of the unauthorized communication. While the Deputy Marshal did reveal that the defendants were in custody, her offhand reference to "prisoners" did not call undue attention to the fact. There was no reasonable possibility that this information could have prejudiced the jury. Ortiz-Salazar does not contest the Deputy Marshal's account of the communication, but nonetheless argues that the district court was required to question the jurors.

Ortiz-Salazar seems to reason that because a criminal defendant is denied the presumption of innocence if compelled to wear prison clothing at trial, see Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972), it follows that any disclosure of pretrial detention violates due process and necessarily creates a reasonable possibility of prejudice. This is incorrect. Disclosure of detention status is not equivalent to disclosure of prejudicial extrinsic material which pertains to a fact in controversy. Compare Vasquez, 597 F.2d at 193 (new trial necessary after jurors had access to inadmissible evidence regarding prior prosecution and search incident to arrest) and United States v. Bagley, 641 F.2d 1235, 1237 (9th Cir.), cert. denied, 454 U.S. 942 (1981) (disclosure of information about immunity which the jurors requested and which bore directly on witness credibility judged under constitutional error standard but found harmless based on curative instruction and other factors) with Madrid, slip op. at 3507 (clerk's unauthorized comments directed at antagonism between two jurors did not relate to a fact in controversy or applicable law and were not grounds for new trial) and United States v. Birges, 723 F.2d 666, 670-71 (9th Cir.), cert. denied, 466 U.S. 943 and 469 U.S. 863 (1984) (no prejudice resulted from dictionary being sent to jurors after they requested definition of "tacitly"). The district court held a hearing sufficient to determine beyond reasonable doubt that the Deputy Marshal's communication with the juror was not such that it could have influenced the jurors' determination of the issues. Nothing more was required.

AFFIRMED.