USA v. Colon (Rojas), No. 09-3007 (2d Cir. 2010)
Annotate this Case
Download PDF
09-3007-cr USA v. Colon (Rojas) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: July 14, 2010 Decided: August 12, 2010) Docket No. 09-3007-cr UNITED STATES OF AMERICA, Appellee, v. NICHOLAS ROJAS, Defendant-Appellant. Before: JACOBS, Chief Judge, WESLEY and CHIN, Circuit Judges. Appeal from the judgment of the United States District Court for the District of Connecticut (Kravitz, J.), entered on July 9, 2009, sentencing defendant principally to eighty months imprisonment. Defendant was convicted, after a jury trial, of one count of conspiracy to possess with the intent to distribute, and to distribute, five grams or more of cocaine base and two counts of use of a telephone to facilitate the commission of a drug trafficking felony. On appeal, defendant challenges the sufficiency of the evidence on which his conspiracy conviction rests. He further contends that the district court erred in recalling the jury 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 after it had been pronounced discharged to correct an error in the reading of the written verdict form. Defendant maintains that these asserted errors require vacatur of his conviction with respect to the conspiracy count. We disagree. The evidence was sufficient to sustain the jury s verdict and the district court did not err in recalling the jury. Accordingly, the judgment of the district court is hereby AFFIRMED. S. DAVE VATTI, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), for Nora R. Dannehy, United States Attorney for the District of Connecticut, Hartford, CT, for Appellee. JONATHAN J. EINHORN, New Haven, CT, for DefendantAppellant. WESLEY, Circuit Judge: On May 16, 2008, a jury found defendant Nicholas Rojas 23 guilty of conspiring to possess with the intent to 24 distribute, and to distribute, five grams or more of cocaine 25 base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 26 and 846. 27 telephone to facilitate the commission of a drug trafficking 28 felony in violation of 21 U.S.C. § 843(b). 29 government presented evidence that Rojas functioned as a The jury also found Rojas guilty of using a 2 At trial, the 1 street-level crack dealer in a large-scale narcotics 2 trafficking organization headed by Luis A. Colon, also known 3 as Anthony Colon. 4 On appeal, Rojas contends that the evidence at trial 5 was insufficient to establish that he joined the charged 6 conspiracy. 7 drugs he acquired from Colon, he did so only to finance his 8 own drug habit. 9 the district court to recall the jury, after it had been Specifically, Rojas argues that while he sold Rojas also asserts that it was improper for 10 declared discharged but before it had dispersed, in order 11 to correct a misreading of the written verdict form and to 12 re-poll the jury. 13 to support the jury s verdict. 14 on the totality of the facts and circumstances presented by 15 this case, it was not error for the district court to recall 16 the jury. 17 18 19 We hold that the evidence was sufficient We further hold that, based We therefore affirm. I. BACKGROUND At trial, the government presented evidence that, in October of 2005, the Federal Bureau of Investigation ( FBI ) 3 1 commenced an investigation into a drug trafficking 2 organization, which was operating in Waterbury, 3 Connecticut. 1 4 was Anthony Colon, who served as a cooperating witness for 5 the government at trial. 6 Rojas interacted with Colon on an almost daily basis. 7 According to FBI agent William Aldenberg, who testified at 8 trial, the government intercepted Colon s phone calls over a 9 period of approximately ninety days. At the center of this criminal organization The evidence demonstrated that Agent Aldenberg 10 estimated that the government introduced twenty-three audio 11 recordings of conversations between Colon and Rojas. 12 Aldenberg further testified that Rojas used thirteen 13 different phones to place calls to Colon, and that the use 14 of multiple phones is common among street-level distributors 15 in drug conspiracies. 1 Agent The original indictment in this case contained thirteen counts charging thirty one individuals with various narcotics offenses. A superseding indictment, on which the government proceeded to trial, was subsequently returned against Rojas. Rojas was tried with one other individual, who was charged in a separate indictment. The co-defendant tried with Rojas is not implicated by this appeal. 4 1 In his capacity as a cooperating witness, Colon 2 testified that he had a longstanding relationship with 3 Rojas. 4 trafficking organization because he knew him; according to 5 Colon, Rojas was buying drugs on a street corner where 6 Colon s organization operated prior to the point at which 7 Rojas joined the conspiracy. 8 at the nascency of their conspiratorial relationship, he 9 told Rojas that he would have to give him a test to Colon explained that he brought Rojas into his drug Colon further testified that, 10 determine his reliability. 11 Once their relationship was established, Colon provided 12 drugs to Rojas on credit, Trial Tr. 418:14-15, May 13, 13 2008, usually when he was assured that Rojas had a customer 14 to whom he would resell the drugs. 15 trust[ed] Rojas. 16 evidence of this trust, he would permit Rojas to pick up 17 crack cocaine on credit from his house for resale. 18 Tr. 349:20-25, 350:1, May 13, 2008. 19 Trial Tr. 342:5, May 13, 2008. Colon attested that he Trial Tr. 342:23, May 13, 2008. As Trial At trial, the government elicited testimony from Colon 5 1 that, on multiple occasions, he bailed Rojas out of jail 2 because Rojas was moving product for him. 3 418:19-25, 419:1-12, May 13, 2008. 4 introduced the bond paperwork to corroborate Colon s 5 testimony in this regard. 6 conspiratorial relationship, a recorded conversation was 7 played at trial in which Rojas referred to himself as 8 Colon s partner. 9 explained that he understood Rojas to be communicating that 10 11 he was his boy. Trial Tr. The government As additional evidence of the Trial Tr. 356:12, May 13, 2008. Colon Trial Tr. 356:14-16, May 13, 2008. Rojas maintained at trial and now argues before this 12 Court that he was merely a drug user who purchased drugs 13 from Colon, but that he was not a member of the charged 14 conspiracy. 15 instructed the jury that mere knowledge or acquiescence 16 without participation in the unlawful plan is not 17 sufficient to form the basis of a conspiracy conviction. 18 Trial Tr. 578:8-10, May 14, 2008. 19 explained to the jury that the fact that the acts of a In light of this contention, the district court 6 The district court 1 defendant, without knowledge, merely happen to further the 2 purposes or the objectives of the conspiracy does not make 3 that defendant a conspirator. 4 2008. 5 Trial Tr. 578:10-13, May 14, The court also provided the jury with what is commonly 6 referred to as a buyer-seller instruction. 7 Specifically, the court stated: [W]ithout more, the mere existence of a buyer/seller relationship is insufficient to establish membership in a conspiracy. In deciding whether parties to a sale of narcotics are merely a buyer and seller, or instead are co-conspirators, the jury may properly consider a number of factors, including the length of time that the buyer affiliated with the seller; whether there was a common goal among the parties to advance the conspiracy s interests; whether there was an agreement or understanding to redistribute drugs; the established method of payment; the extent to which the transactions were standardized; the quantities of drugs involved; and whether there was mutual trust between the buyer and the seller. None of these factors is dispositive, nor is this listing intended to be exhaustive. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Trial Tr. 578:19-25, 579:1-8, May 14, 2008. 30 instructed that, in order for Rojas to be deemed a co7 The court 1 conspirator, the government was required to prove, beyond a 2 reasonable doubt, that Rojas participated with knowledge of 3 at least some of the unlawful purposes or objectives of the 4 conspiracy and with the intention of aiding in the 5 accomplishment of those unlawful ends. 6 18, May 14, 2008. 7 Trial Tr. 578:15- On May 16, 2008, the jury returned its verdict, finding 8 Rojas guilty of conspiring to possess with intent to 9 distribute, and to distribute, controlled substances. On 10 the written verdict form prepared by the court, the jury 11 made a specific finding that it was reasonably foreseeable 12 to Nicholas Rojas that the conspiracy charged . . . involved 13 the possession with the intent to distribute or the 14 distribution of five grams or more of a mixture and 15 substance containing a detectable amount of cocaine base. 16 Def. App. at 127 (emphasis added) (verdict form as to 17 Rojas). 18 attributable to the defendant was five grams or more of 19 cocaine base. It made a finding that the drug quantity Def. App. at 127 (emphasis added) (verdict 8 1 form as to Rojas). The jury also returned a verdict 2 concluding that Rojas was guilty of two counts of using a 3 telephone to facilitate the commission of a drug trafficking 4 felony in violation of 21 U.S.C. § 843(b). 5 (verdict form as to Rojas). Def. App. at 128 6 During the courtroom deputy s reading of the jury s 7 written verdict form, the deputy made several errors, one of 8 which forms a basis for this appeal. 9 the jury s verdict as to the conspiracy charge, the deputy First, when reading 10 omitted the word base and simply stated five grams or 11 more of a mixture and substance containing a detectable 12 amount of cocaine. 13 (emphasis added). 14 involving the use of a telephone to facilitate a drug crime, 15 the deputy omitted the word base and simply referred to 16 the use of a telephone to facilitate the knowing, 17 intentional, and unlawful possession with intent to 18 distribute and distribution of cocaine. 19 692:1-4, May 14, 2008 (emphasis added). Trial Tr. 691:12-14, May 14, 2008 Similarly, with respect to the counts 9 Trial Tr. 691:25, 1 The error with respect to the telephone counts was 2 brought to the court s attention before the jury was 3 declared discharged, and was quickly corrected. 4 697:17-25, 698:1-2, May 14, 2008. 5 asked if counsel for either party wanted the verdict re-read 6 in its entirety, counsel declined and indicated that they 7 only wished to have the verdict re-read with respect to the 8 telephone counts. 9 Consequently, the error as to the conspiracy count was not Trial Tr. However, when the court Trial Tr. 697:17-21, May 14, 2008. 10 detected until the jury had been polled, pronounced 11 discharged, and had returned to the deliberation room to 12 await the thanks of the court for its service. 13 this time that counsel reviewed the transcript of the 14 deputy s reading of the verdict form and realized that the 15 word base had also been omitted in the reading of the 16 conspiracy count. 17 this omission. 18 discussed how to proceed. 19 if he would consent to having the jury returned to the It was at The lawyers alerted the district judge to Counsel for both sides and the court then The court asked defense counsel 10 1 courtroom and re-polled; defense counsel declined to consent 2 to this course of action. 3 objection, the court nonetheless recalled the jury, which 4 had not yet left the jury room. 5 reassembled in the courtroom, the court explained why they 6 had been asked to return, instructed the deputy to re-read 7 the verdict form, and then re-polled the jury. 8 assented to the corrected reading of the verdict form and 9 was declared discharge[d] a second time. Noting defense counsel s Once the jurors were The jury 10 On June 17, 2008, Rojas filed a motion in the district 11 court for a judgment of acquittal, Fed. R. Crim. P. 29, or, 12 in the alternative, for a new trial, Fed. R. Crim. P. 33. 13 This motion was based solely on his allegation that 14 insufficient evidence supported his conviction. 15 district court denied the motion on December 19, 2008, 16 concluding that there was no doubt that the evidence in its 17 totality was sufficient to allow the jury to find beyond a 18 reasonable doubt that Mr. Rojas was not merely a buyer or 19 seller of narcotics, but rather that he knowingly and 11 The 1 intentionally participated in the Colon narcotics- 2 distribution conspiracy by agreeing to accomplish its 3 illegal objective beyond the mere purchase or sale of 4 drugs. 5 WL 5329006, at *6 (D. Conn. Dec. 19, 2008). 6 Rojas contention with respect to the sufficiency of the 7 evidence, the court also declined to grant a new trial 8 pursuant to Rule 33, finding no miscarriage of justice in 9 the jury s verdict. United States v. Rojas, No. 06 Cr. 269 (MRK), 2008 Ruling only on Id. at *8. Rojas was sentenced on July 8, 2008 and judgment was 10 11 entered against him on July 10, 2009. D. Ct. Doc. Nos. 1281, 12 1282. II. DISCUSSION 13 14 15 Defendant s timely notice of appeal followed. A. Sufficiency of the Evidence It is well-established that a defendant challenging the 16 sufficiency of the evidence bears a heavy burden. 17 United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) 18 (quoting United States v. Parkes, 497 F.3d 220, 225 (2d Cir. 19 2007)). On such a challenge, we view the evidence in the 12 1 light most favorable to the government, drawing all 2 inferences in the government s favor and deferring to the 3 jury s assessments of the witnesses credibility. 4 (internal quotation marks omitted). 5 evidence in its totality, United States v. Wexler, 522 F.3d 6 194, 207 (2d Cir. 2008), and uphold the jury s verdict as 7 long as any rational trier of fact could have found the 8 essential elements of the crime beyond a reasonable doubt. 9 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Id. We must evaluate the 10 original). This inquiry is distinct from asking whether 11 this Court believes that the evidence at trial established 12 guilt beyond a reasonable doubt. 13 assessing the sufficiency of the evidence in the context of 14 a conspiracy conviction, deference to the jury s findings 15 is especially important . . . because a conspiracy by its 16 very nature is a secretive operation, and it is a rare case 17 where all aspects of a conspiracy can be laid bare in 18 court. 19 internal quotation marks omitted). Id. at 318-19. In Wexler, 522 F.3d at 207 (alteration in original and 13 1 As a literal matter, when a buyer purchases illegal 2 drugs from a seller, two persons have agreed to a concerted 3 effort to achieve the unlawful transfer of the drugs from 4 the seller to the buyer. 5 definition, that would constitute a conspiracy . . . . 6 United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009). 7 There is, however, a narrow exception to the general 8 conspiracy rule, upon which defendant relies, applicable to 9 transactions between a buyer and a seller of drugs. 10 Under this exception, a buyer-seller relationship, 11 [w]ithout more, is insufficient to establish a conspiracy. 12 United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998). 13 rationale for this exception is that, while a drug sale is a 14 substantive crime, it should not be characterized as a 15 conspiracy because it has no separate criminal object. 16 Wexler, 522 F.3d at 208 (internal quotation marks omitted). According to the customary Id. 17 Significantly, the fact that a buyer-seller 18 relationship exists between co-conspirators does not 19 insulate a buyer from a conspiracy charge if the facts 14 The 1 support such a charge. Parker, 554 F.3d at 232. In other 2 words, the exception does not protect either the seller or 3 buyer from a charge [that] they conspired together to 4 transfer drugs if the evidence supports a finding that they 5 shared a conspiratorial purpose to advance other transfers, 6 whether by the seller or by the buyer. 7 the defendant does not dispute that a conspiracy headed by 8 Colon existed. 9 insufficient evidence to prove his membership in the Id. at 235. Here, Rather, he claims that there was 10 conspiracy. 11 reveals more than a mere buyer-seller relationship; there is 12 additional evidence showing an agreement to join together 13 to accomplish an objective beyond the sale transaction from 14 which a rational jury could have inferred that Colon and 15 Rojas were co-conspirators. 16 We reject this contention because the evidence Hawkins, 547 F.3d at 72. While our Circuit has avoided listing factors to guide 17 what is a highly fact-specific inquiry into whether the 18 circumstances surrounding a buyer-seller relationship 19 establish an agreement to participate in a distribution 15 1 conspiracy, we have noted the relevance of certain 2 factors identified by other circuit courts of appeal. 3 at 74 (citing United States v. Hicks, 368 F.3d 801, 805 (7th 4 Cir. 2004); United States v. Gibbs, 190 F.3d 188, 199 (3d 5 Cir. 1999)). 6 credit, such as those that took place between Colon and 7 Rojas, have been used [t]o distinguish between a buyer- 8 seller relationship and a conspiratorial agreement. 9 368 F.3d at 805; see also Hawkins, 547 F.3d at 74. 10 Id. For example, the existence of sales on Hicks, In this case, defendant asked for and was given a jury 11 instruction regarding the buyer-seller exception. 12 do not reach the question of whether defendant was entitled 13 to such an instruction, cf. United States v. Medina, 944 14 F.2d 60, 65 (2d Cir. 1991) (finding the district court did 15 not err in refusing to give the . . . buyer-seller 16 instruction because there was advanced planning among the 17 alleged co-conspirators to deal in wholesale quantities of 18 drugs obviously not intended for personal use ), we find 19 that the instruction given was not in error. 16 While we The district 1 court properly instructed the jury that the mere existence 2 of a buyer/seller relationship was not sufficient to 3 establish membership in a conspiracy, and the district court 4 correctly informed the jury that in determining whether 5 Rojas was a mere buyer on instead a member of the 6 conspiracy, it could consider a number of non-dispositive, 7 non-exclusive factors. 8 A non-exclusive list of considerations relevant to a 9 jury s determination of whether a defendant was a member of 10 a charged conspiracy, or a merely a buyer and user of drugs, 11 would include: 12 conspiracy s interests? 13 buyer and seller? 14 the buyer have a longstanding relationship with the seller? 15 Did the buyer perform other duties on behalf of the 16 conspiracy? 17 that was part of the conspiratorial enterprise? 18 quantity of drugs purchased indicate an intent to re- 19 distribute? Did the buyer seek to advance the Was there mutual trust between Were the drugs provided on credit? Did Were the drugs purchased for a re-distribution Did the Were the buyer s profits shared with the 17 1 members of the conspiracy? 2 have the protection of the conspiracy (physically, 3 financially, or otherwise)? 4 or protected by members of the conspiracy? 5 use other members of the conspiracy in the re-distribution? 6 The jury may consider these, and any other relevant matters, 7 in deciding whether a buyer of drugs is a member of the 8 distribution conspiracy. 9 presented, the jury was entitled to reject defendant s 10 contention that his conduct fit within the buyer-seller 11 exception to ordinary conspiracy law principles. 12 Did the buyer/re-distributor Was his point of sale assigned Did the buyer Here, based on the evidence Rojas clearly enjoyed the benefit of a relationship 13 that exceeded one of simply a buyer and a seller in 14 negotiating sales on credit with Colon. 15 recorded exchange, Colon initially balked at a request by 16 Rojas to provide him with drugs on credit. 17 694 (government trial exhibit 35A). 18 on, Anthony, this is me. 19 trial exhibit 35A). During one Gov t App. at Rojas implored: Come Gov t App. at 694 (government The transaction was eventually 18 1 accomplished. 2 exhibit 35A). The evidence revealed that Rojas regarded 3 himself as more than a mere buyer. 4 as Colon s partner, and even took it upon himself to protect 5 Colon s apartment from intruders while Colon was away. 6 Trial Tr. 356:12, 355:7-25, May 13, 2008. 7 Gov t App. at 694-95 (government trial He referred to himself The fact that Colon provided Rojas with bail money also 8 lends credence to the jury s determination that Colon and 9 Rojas were co-conspirators, involved in a mutually 10 beneficial relationship. 11 credit may reflect the kind of trust, Gibbs, 190 F.3d at 12 200, often present between co-conspirators, so too can the 13 provision of bail money. 14 stake in Rojas s illegal venture. 15 Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (internal 16 quotation marks omitted). 17 Just as the provision of drugs on Indeed, it evinces Colon s shared United States v. As was the case in United States v. Hawkins, the 18 evidence [presented at trial] clearly establishe[d] that 19 [Rojas] intended to redistribute some of the [crack] cocaine 19 1 he purchased from Colon for profit. 547 F.3d at 75. 2 fact, Colon testified that he sold drugs to Rojas on 3 credit because he knew that Rojas would resell a portion of 4 those drugs. 5 argues that his only object in reselling the drugs he 6 obtained from Colon was to make money to feed his addition, 7 and not to further the ends of the conspiracy. 8 the government notes before this Court, the manner in which 9 Rojas chose to spend the profits he obtained from his Trial Tr. 291:13-20, May 13, 2008. In Rojas However, as 10 participation in the conspiracy is of no legal significance 11 to our evaluation of whether the evidence was sufficient to 12 establish more than a buyer-seller relationship. 13 In his testimony at trial, Colon identified the 14 defendant as one of the individuals who was buying larger 15 quantities of drugs from him. 16 2008. 17 quantity of drugs purchased by Rojas that they were not all 18 for individual consumption. 19 call, which was played at trial, Rojas asked Colon to Trial Tr. 289:7-9, May 13, The jury could draw a reasonable inference from the For example, in one intercepted 20 1 [f]ront him seven grams of crack cocaine. 2 334:10, May 13, 2008. 3 assured him that he would be able to pay him back [a]t the 4 end of the night. 5 explained that he understood that, in order for Rojas to pay 6 him back, Rojas would have to resell the drugs. 7 Trial Tr. According to Colon s testimony, Rojas Trial Tr. 334:12, May 13, 2008. Colon In a recorded phone call played at trial, Colon told 8 Rojas that he would always look out for [him] because 9 Rojas look[ed] out for [Colon]. Gov t App. at 720 10 (government trial exhibit 45A). 11 Colon: when I deal, then I come through. 12 721 (government trial exhibit 45A). 13 have considered this assurance of reliability as evidence of 14 a conspiracy. 15 172, 176 (2d Cir. 1991). 16 the fact that Colon and Rojas had a longstanding 17 relationship. 18 Wexler, 522 F.3d at 211 (Raggi, J., dissenting). 19 Further, Rojas assured Gov t App. at The jury could properly See United States v. Miranda-Ortiz, 926 F.2d This is so especially in light of See Contreras, 249 F.3d at 599; see also In sum, we conclude that sufficient evidence supported 21 1 the jury s verdict. 2 on evidence presented at trial that demonstrated a lengthy 3 affiliation between Colon and Rojas, evidence that 4 demonstrated mutual trust between the defendant and Colon, 5 the presence of sales on credit, the quantity of drugs 6 involved, and the fact that Colon bailed Rojas out of jail 7 on multiple occasions, to conclude that Colon and Rojas were 8 co-conspirators and that their relationship was not that of 9 a mere buyer and a seller. 10 11 B. The jury could reasonably have relied See Gibbs, 190 F.3d at 199-200. Recalling the Discharged Jury Defendant s second contention on appeal presents this 12 Court with a question that we have never before had occasion 13 to answer: may a district court recall a jury that has been 14 declared discharged, but which has not dispersed, to re- 15 read a verdict form when the courtroom deputy s initial 16 reading did not conform to the written verdict? 17 based on the facts and circumstances of this case, that no 18 error was committed by the district court. 19 We find, We review de novo a district court s interpretation of 22 1 the Federal Rules of Criminal Procedure. Cf. United States 2 v. Camacho, 370 F.3d 303, 305 (2d Cir. 2004). 3 the question of which verdict controls the written or the 4 oral verdict to be a question of law, which is also 5 subject to de novo review. 6 F.2d 1526, 1532 (9th Cir. 1991). We consider See United States v. Boone, 951 7 In framing his argument that the district court erred 8 in recalling the jury, the defendant relies on Federal Rule 9 of Criminal Procedure 31(d), which provides: After a verdict is returned but before the jury is discharged, the court must on a party s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury. 10 11 12 13 14 15 16 17 18 19 Fed. R. Crim. P. 31(d). 20 prevent the district court from returning a jury, which has 21 not left the deliberation room, to the courtroom when it 22 becomes clear that the deputy erred in reciting the written 23 verdict. 24 marks only a time when the jurors have been discharged We conclude that this rule does not The mere incantation of the word discharged 23 1 nominally. The court must evaluate the specific scenario 2 presented in order to determine whether recalling the jury 3 would result in prejudice to the defendant or undermine the 4 confidence of the court or of the public in the verdict. 5 In this case, notwithstanding the fact that the jury 6 assented to the improperly read verdict form when polled for 7 the first time, the initial misreading of the written 8 verdict form in no way calls into doubt our conclusion that 9 the actual verdict reached by the jury is reflected in the 10 written form. 11 any uncertainty that the written verdict form reflects an 12 uncoerced and unanimous jury verdict. 13 Nor does the recitation error leave us with The government relies heavily on a 1926 decision of the 14 Fourth Circuit Court of Appeals, Summers v. United States, 15 11 F.2d 583 (4th Cir. 1926), which we find instructive. 16 that case, the court held: 17 18 19 20 21 22 [A jury] may remain undischarged and retain its functions, though discharge may have been spoken by the court, if, after such announcement, it remains an undispersed unit, within [the] control of the court, with no opportunity to mingle with or 24 In discuss the case with others, and particularly where, as here, the very case upon which it has been impaneled is still under discussion by the court, without the intervention of any other business. 1 2 3 4 5 6 7 Id. at 586. 8 by the Summers court also present in this case a jury 9 may properly be returned to the courtroom to correct a We agree that under the circumstances described 10 technical error that occurred during the initial reading of 11 its written verdict. 2 12 reflects the operative verdict in this case. 13 assented to the corrected reading of its verdict in open 14 court, and it is therefore a wholly reliable indicator of 15 the jury s true verdict. 16 of the word base when reading the verdict initially does 17 not require vacatur of the conviction under these We find that the written verdict form The jury The deputy s inadvertent omission 2 In referring to the error in the deputy s reading of the verdict as technical, we do not mean to suggest that the distinction between a cocaine offense and a cocaine base offense is not a substantive one. Rather, we mean that the misreading itself was a technical error. Furthermore, as noted by the district court, the actual underlying count of conviction refers to a controlled substance, 21 U.S.C. § 841(a)(1), and this portion of the verdict form was read properly. 25 1 2 circumstances. The re-reading of the written verdict form, and re- 3 polling of the jury, as conducted in this case, is 4 distinguishable from a case in which jury deliberations are 5 reopened. 6 Cir. 1995). 7 jury to correct a technical error in the courtroom deputy s 8 reading of the verdict form. 9 further deliberation took place between the initial See United States v. Kress, 58 F.3d 370, 372 (8th Here, the district court simply reconvened the We can be confident that no 10 discharging of the jury and minutes later when it was 11 reassembled in the courtroom. 12 that can be drawn from the record is that the members of the 13 jury were unaware that the oral recitation of their verdict 14 was not in conformance with the written verdict until they 15 were returned to the courtroom by the district judge. 3 The most logical conclusion 3 We do not decide whether a different outcome would result if the jury was asked to do anything beyond clarify what it had previously decided. It might be that reassembling a jury after it has dispersed, and after a significant amount of time has passed, could pose manifest difficulties, Harrison v. Gillespie, 596 F.3d 551, 574 (9th Cir. 2010) (internal quotation marks omitted), but we are not now faced with such a scenario. In the instant case, 26 1 It is significant that, although the jury had 2 technically been declared discharged by the court, it had 3 not dispersed. 4 4 outside factors, which might render[] the reliability of 5 any poll on recall problematic. 6 32 F.3d 1209, 1213 (7th Cir. 1994). 7 Summers court, the Seventh Circuit has held that [w]hen a 8 jury remains as an undispersed unit within the control of 9 the court and with no opportunity to mingle with or discuss The jurors were therefore not exposed to United States v. Marinari, In accord with the 10 the case with others, it is undischarged and may be 11 recalled. 12 in this case retain[ed] its function[], Summers, 11 F.2d 13 at 586, and that it was proper to return it to the courtroom 14 for a re-reading of the verdict form and for a re-polling. Id. at 1214. Similarly, we hold that the jury the government maintains and there is nothing in the record to contradict this assertion that the district court was informed of the error within six minutes of pronouncing the jury discharged. 4 We leave for another day the question of the legitimacy of a verdict when a technical misreading of a written verdict form is not discovered until after the jury has dispersed. 27 1 Based on the totality of the circumstances of this 2 case, there can be no doubt that the jury intended to 3 convict Rojas of an offense involving cocaine base. 4 evidence at trial centered on defendant s sale of cocaine 5 base, the defendant was charged in a conspiracy to 6 distribute cocaine base, the court s instructions to the 7 jury referred to a crime involving cocaine base, and the 8 written verdict form required the jury to make specific 9 findings as to the amount of cocaine base involved in The 10 defendant s crime. Indeed, in re-polling the jury after the 11 error was detected as to the reading of the telephone 12 counts, the district court specifically stated that it 13 wanted to ensure that [its] verdict is as to cocaine base 14 and not as to cocaine. 5 Trial Tr. 698:1-2, May 14, 2008. 5 Although we find that the district court did not err, even if we were to accept defendant s contention that the recalling and re-polling of the jury was error, it would clearly be harmless under the circumstances. See United States v. Yousef, 327 F.3d 56, 121 (2d Cir. 2003). Federal Rule of Criminal Procedure 52(a) states: Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. 28 1 The fact that the jury originally assented to the 2 misread version of its verdict does not alter our holding: To conclude that the jury agreed with the [deputy s] mistaken reading of the verdict, rather than the jury s written verdict, requires us to assume that the jurors unanimously changed their minds in a split second . . . . It is unreasonable to expect the jurors to have corrected the [deputy s] misreading of their verdict and to conclude that by their failure to do so [they had] assented to the misread verdict[]. 3 4 5 6 7 8 9 10 11 12 13 14 15 Boone, 951 F.2d at 1532. 16 the purpose of a jury poll is to test the uncoerced 17 unanimity of the verdict by requiring each juror to answer 18 for himself [or herself], thus creating individual 19 responsibility. 20 502 (2d Cir. 1991) (internal quotation marks omitted and 21 emphasis added). 22 when polled, to dissent from a verdict to which he [or she] As we have previously explained, United States v. Gambino, 951 F.2d 498, While it is true that a juror has a right, Fed. R. Crim. P. 52(a). The record demonstrates that the flawed recitation of the jury s written verdict form did not affect the defendant s substantial rights. The defendant suffered no prejudice by the reassembly of the jury. 29 1 has agreed in the jury room, Bruce v. Chestnut Farms-Chevy 2 Chase Dairy, 126 F.2d 224, 225 (D.C. Cir. 1942) (per 3 curiam), there is no suggestion that any one of the jurors 4 in fact dissented from the written verdict form. 5 nothing in the record to reflect disunity within the jury; 6 nor does the defendant contend that the jury s endorsement 7 of its written verdict upon re-polling was the product of 8 coercion. 9 assented to the corrected reading of its verdict form There is Rather, the fact that the jury unanimously 10 suggests that it was under the erroneous impression that the 11 original reading accurately reflected its unanimous, written 12 verdict. 13 Accordingly, there is no merit to the argument that the 14 jury intended to convict Rojas of a cocaine offense, rather 15 than an offense involving cocaine base. 16 Pateman, 958 F.2d 448, 457 (1st Cir. 1992) (finding no 17 plausible theory[,] . . . legal or equitable, which could 18 ground an assertion that the jury findings were ambiguous 19 and assum[ing] that the jury listened to and understood the 30 Cf. Putnam Res. v. 1 court s entire charge (internal quotation marks omitted)). 2 To find otherwise would elevate form over substance. 3 Boone, 951 F.2d at 1533. 4 verdict to reflect the misread verdict, it would have the 5 effect of frustrat[ing] the jury s intent and the entire 6 jury process. 7 form is operative and that it accurately reflects the jury s 8 true verdict. 9 did not err in recalling the still-assembled jury to correct 10 Id. If we were to conform the written We conclude that the written verdict Therefore, we hold that the district court an inadvertent error in the recitation of the verdict. 11 III. CONCLUSION 12 We have reviewed all of defendant s contentions on 13 appeal and find them to be without merit. 14 judgment of the district court is hereby AFFIRMED. 31 Accordingly, the
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
