United States of America, Plaintiff-appellee, v. Maria Irma Ramos, Defendant-appellant, 981 F.2d 1260 (9th Cir. 1992)

MEMORANDUM^**

The trial judge did not abuse his discretion in denying the motion for a mistrial based on allegations that Juror No. 6 had been sleeping during the trial. The district court held a hearing at which the juror stated he had not fallen asleep or missed any testimony. After speaking with another juror, counsel for both sides, and the judge's clerks and interns who had been present in the courtroom, the judge concluded that the juror's statement was true. There is no reason to reject the court's conclusion. United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988) (trial judge's conclusion regarding alleged juror misconduct is accorded "substantial weight."); United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987).

The trial judge properly denied Ramos' motion for mistrial after her co-defendant failed to appear on the second day of trial. Ramos was not prejudiced. The co-defendant's flight did not imply the guilt of anyone but the co-defendant herself. Indeed, Ramos' "continued presence, by contrast, might have been viewed by the jury as belief in [her] own innocence." United States v. Lobo, 516 F.2d 883, 884 (2d Cir. 1975); see also United States v. Candoli, 870 F.2d 496, 501 (9th Cir. 1989). Moreover, we may presume the jurors followed the trial court's instruction not to consider the absence of Ramos' co-defendant against Ramos in any way. Francis v. Franklin, 471 U.S. 307, 324-25 n. 9 (1984); United States v. Hoelker, 765 F.2d 1422, 1426 (9th Cir. 1985).

Affirmed.