United States v. Rex Henley, Rafael Bustamante, Willie McGowan and Garey West

Citations: 238 F.3d 1111; 55 Fed. R. Serv. 936; 2001 Daily Journal DAR 1431; 2001 Cal. Daily Op. Serv. 1126; 2001 U.S. App. LEXIS 1726Docket: 96-50697, 97-50015, 97-50020 and 97-50060

Court: Court of Appeals for the Ninth Circuit; February 7, 2001; Federal Appellate Court

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Rex Henley, Rafael Bustamante, Willie McGowan, and Garey West appeal their convictions for conspiracy to possess and distribute cocaine and possession with intent to distribute cocaine, violating 21 U.S.C. §§ 846 and 841(a)(1). They also seek a new trial based on allegations of juror bias and tampering. The Ninth Circuit remands the case to the district court for further proceedings on the new trial motion while rejecting the other grounds for appeal.

The case stems from a federal grand jury indictment on June 23, 1994, which charged the appellants and others, including Darryl Henley, with conspiracy and possession related to cocaine distribution. Darryl Henley, a Los Angeles Rams player and nephew of Rex Henley, was implicated in the distribution network, with Bustamante supplying cocaine, and West and McGowan assisting in its distribution in Memphis and Atlanta. Tracy Donaho, a Rams cheerleader romantically involved with Darryl, served as a drug courier and was arrested on July 15, 1993, with twelve kilograms of cocaine, later cooperating with the DEA and testifying against the defendants.

On March 28, 1995, the appellants were convicted. Following their conviction, juror Bryan Quihuis reported a bribery attempt related to the case. An investigation revealed that former juror Michael Malachowski had contacted the Henleys during the trial, suggesting he had information that could lead to a new trial, and disclosed discussions he had with other jurors regarding trial evidence, violating court instructions.

Darryl Henley contacted Malachowski to inquire about jurors who might vote not guilty in the case against the Henleys. Malachowski revealed that juror Quihuis had admitted to weekend methamphetamine use and that juror O'Reilly had made racist comments. Henley directed Malachowski to persuade Quihuis to vote not guilty, promising him a job with the Rams in return. On March 21, Malachowski met Quihuis and discussed a bribe, conditionally agreeing on $25,000 to $50,000, with Quihuis requesting to speak to Henley directly. They called Henley, who offered the bribe, with Quihuis wanting half upfront. However, Quihuis later decided against participating in the scheme.

Despite multiple attempts by Henley and Malachowski to convince Quihuis to reconsider, including phone calls and home visits, Quihuis ultimately avoided Malachowski. On March 24, after learning about the potential life sentence Henley faced, Quihuis informed the trial judge of the impact this had on him but was not disqualified from the jury. On March 27, just before the jury's verdict, Malachowski reiterated Henley’s offer of $50,000 for a not guilty vote, which Quihuis again declined. The jury convicted the defendants the following day.

Post-conviction, Malachowski falsely claimed in a deposition that Quihuis had initiated the bribery and attempted to extort money from Henley. He also accused juror O'Reilly of making racist remarks and stated that Quihuis had used drugs during the trial, alleging premature jury deliberation. Following these misconduct allegations, the FBI investigated, and the district court held evidentiary hearings for new trial motions. While Malachowski and O'Reilly testified, Quihuis invoked his Fifth Amendment right against self-incrimination; however, transcripts of his conversations with relevant parties were admitted into evidence.

Evidence regarding O'Reilly's alleged racist remarks was inconsistent. Malachowski admitted to embellishing O'Reilly's statements, confirming O'Reilly used the term "nigger," but not in reference to the defendants. O'Reilly denied making any racist comments, asserting a history of relationships with African-Americans. In contrast, Quihuis, in FBI interviews, recalled O'Reilly saying, "The niggers are guilty," without clarity on whether this referred to the defendants or African-Americans generally. Quihuis suggested O'Reilly likely lied on his juror questionnaire about his racial bias.

On August 29, 1996, the district court denied a motion for a new trial, stating that juror testimony aimed at impeaching a jury verdict was generally barred by Federal Rule of Evidence 606(b). The court considered O'Reilly's alleged bias only in relation to his voir dire responses, concluding that O'Reilly did not fail to answer honestly regarding race.

Regarding Quihuis's attempted bribery, the court recognized this as presumptively prejudicial but determined the presumption was rebutted by strong evidence of the defendants' guilt, as indicated by the jury's quick verdict. The court found that Rex Henley knew about the bribery attempt before the verdict and denied his motion for a new trial as untimely under Federal Rule of Criminal Procedure 33, which mandates that such motions be filed within seven days post-verdict unless based on newly discovered evidence.

All four appellants appealed the district court's denial of their motion for a new trial. The legal standard for jury tampering, established in Remmer v. United States, considers any unauthorized contact with a juror as presumptively prejudicial, placing the burden on the government to prove the contact was harmless after an appropriate hearing.

On remand, the district court determined that the petitioner was not prejudiced by a bribery attempt directed at a juror. The Supreme Court, upon granting certiorari, reversed this decision, asserting that the bribery attempt could have compromised the juror's impartiality and left him disturbed. The Court emphasized the importance of protecting the jury from unauthorized external influences. Following the Remmer cases, it has been established that jury tampering presumes prejudice, placing a heavy burden on the government to counter this presumption. In United States v. Dutkel, the court noted that allegations of jury tampering are more serious than other forms of jury misconduct, as they undermine the Sixth Amendment's guarantee of a fair trial. The court held that even if the bribery was perpetrated by a co-defendant, the presumption of prejudice applies since it may have influenced the juror's judgment.

In evaluating claims of jury tampering, a defendant must show a prima facie case that the tampering adversely affected the deliberations, a standard that is relatively easy to meet. If the district court determines that the claim is not frivolous, it must conduct a Remmer hearing to assess the impact of the tampering. The court need not find that the verdict would have changed; rather, it must establish that the tampering materially affected the deliberations. The district court, in denying the new trial motion based on the bribery of juror Quihuis, failed to apply the correct legal standard as clarified by Dutkel. Instead of assessing whether the bribery attempt distracted jurors, it improperly focused on whether the jury was "substantially swayed" by the misconduct, a standard relevant to less severe forms of jury misconduct. The court's reliance on the overwhelming evidence of guilt was erroneous; it should have prioritized the effect of the bribery attempt on deliberations. Although juror Quihuis invoked his Fifth Amendment rights and did not testify, enough evidence regarding the bribery's impact was presented to warrant remand for further consideration.

Mulligan questioned Quihuis about his failure to report a bribery attempt to the judge, to which Quihuis expressed profound fear for his own and his family's safety. He recounted a previous incident involving threats made by Bustamante against witness Alex Cuevas, which heightened his anxiety about potential repercussions for not cooperating. Quihuis maintained that the bribery attempt did not influence his judgment, but he acknowledged feeling threatened due to Malachowski's knowledge of his address and the possibility of sharing this information with others. Following the trial, he conveyed his concerns to his grandparents, reiterating his fears of harm.

The excerpt outlines that Quihuis's experiences align with the principles established in Dutkel, indicating that his interactions with Malachowski and Henley significantly disturbed him and could have interfered with the jury's deliberations. Quihuis's fear likely hindered his engagement in deliberations, as he was preoccupied with the threats to his family and the need to conceal his situation from the court and fellow jurors.

The government expressed no opposition to a limited remand for the district court to hear Quihuis's testimony, especially since he has pleaded guilty to related charges, which may waive his Fifth Amendment protection against self-incrimination. The remand is deemed appropriate to assess whether the presumption of prejudice against the appellants can be rebutted under the Dutkel standard. The burden now rests on the government to prove that Quihuis's actions as a juror were not compromised by the bribery scheme, or the convictions must be vacated.

The appellants claim that Federal Rule of Evidence 606(b), in conjunction with the Remmer cases, creates an irrebuttable presumption of prejudice, as it prohibits juror testimony regarding the influence of deliberation-related statements on their mental processes. They argue that if tampering evidence is not discovered before a verdict, the presumption cannot be rebutted, effectively categorizing it as a structural error necessitating automatic reversal due to the constraints of Rule 606(b). The court, however, previously rejected these arguments in Dutkel, noting that while Rule 606(b) was acknowledged, the focus was on a juror's expressed fear stemming from tampering, which suggested potential influence on deliberations. The Fourth Circuit also addressed the balance between the Remmer presumption and Rule 606(b), allowing testimony about general fear or anxiety following tampering, but not about the juror's mental processes in reaching a verdict. Statements from juror Quihuis about his anxiety regarding his family's safety are deemed admissible, forming a basis for the presumption the government must rebut. However, the government cannot inquire into Quihuis's reliance on trial evidence for his verdict, as it would breach Rule 606(b); it can only question him about his general state of mind post-tampering, with the district court responsible for assessing the credibility of any conflicting testimony.

The district court is not required to determine that the verdict would have changed due to jury tampering to reverse the appellants' convictions. Instead, the government must prove that there is no "reasonable possibility" that juror Quihuis was influenced in his decision-making by the attempted bribery. The court should focus on the jury's deliberative process rather than the verdict itself, rejecting the district court's reliance on the "overwhelming evidence of guilt." On remand, the district court must evaluate whether the government has adequately rebutted the presumption of prejudice stemming from the bribery.

The appellants argue that their convictions should be overturned due to racial bias from juror Sean O'Reilly, which they assert constitutes an "extraneous influence" not limited by Rule 606(b) prohibiting juror testimony. Alternatively, they claim that O'Reilly's racist remarks during voir dire indicate he lied materially, warranting a new trial. Given the racial dynamics of the case, where three defendants are African-American and the main witness is a white woman, the appellants contend that O'Reilly's bias significantly affected the trial.

The district court dismissed the claim regarding racial bias, citing Rule 606(b) as a barrier to admitting testimony about O'Reilly's pre-verdict comments. However, it considered whether O'Reilly had been truthful during voir dire but did not reach a conclusion about the substance of his statements, ultimately ruling that he did not fail to answer honestly. The balance between ensuring a fair trial free from racial bias and maintaining the confidentiality of jury deliberations presents a complex issue, with courts reluctant to strictly apply Rule 606(b) in cases involving potential racial prejudice affecting a defendant's trial.

Appellants argue that racial bias should be considered "extraneous prejudicial information" or an "outside influence," thus exempt from Rule 606(b), which generally prohibits juror testimony regarding deliberations. They emphasize that racial prejudice is a mental bias unrelated to specific case issues, aligning with the Supreme Court's view that jurors may testify about mental biases. Some courts suggest that Rule 606(b) applies to racist remarks during deliberations, but exceptions exist to protect defendants' rights to a fair trial. The Seventh Circuit noted that due process might require reviewing juror testimony to uncover rare abuses, even when the rule is applied. 

In this instance, the appellants contend that juror O'Reilly's alleged racist comments, made before deliberations and outside the jury room, should not be barred by Rule 606(b), as the rule’s purpose is to protect jurors' private deliberations. The court finds compelling arguments for exempting racial prejudice evidence from the rule but refrains from deciding the extent of application regarding statements made during or outside deliberations. It highlights that if a juror has previously claimed no racial bias during voir dire, any evidence of such bias is relevant to assess the truthfulness of their responses.

The appellants assert that O'Reilly's racist remarks indicate he was dishonest in his voir dire responses, where he claimed neutrality on interracial dating and assured that race would not influence his judgment. However, the district court dismissed this claim, stating the record did not prove O'Reilly answered questions untruthfully. The government agrees that a juror affirming that race would influence their decision could be challenged for cause but contests the appellants' assumption that using a racial slur indicates bias against all African-Americans, asserting that the district court was not required to make that inference.

The government’s assertion that individuals using the term "nigger" are not racially biased is met with skepticism. The case requires a careful evaluation of O'Reilly's statements before assessing the veracity of his voir dire responses. The district court failed to address whether O'Reilly made any racist statements and did not specify the content of any such statements, which prevents a review of the court's conclusions due to conflicting accounts. Malachowski initially claimed O'Reilly stated, "All the niggers should hang," but later recanted, asserting O'Reilly only used the term without context. Quihuis supported Malachowski's original claim, stating O'Reilly said, "The niggers are guilty." O'Reilly denied making any racist comments, although his denials may carry less weight than those of other witnesses. Juror bias is typically inferred from circumstances as it is rarely admitted. The district court's decision lacks clarity on whether it found O'Reilly made no racist statements or deemed any such statements insufficient to question his voir dire truthfulness. This ambiguity necessitates a remand for detailed findings on O'Reilly’s alleged statements and racial bias.

Regarding Rex Henley, the district court found he was aware of a bribery attempt before the verdict, leading to a ruling that his motion for a new trial was untimely, as it was not based on newly discovered evidence. Although there was no direct evidence of Henley's pre-verdict knowledge, the court concluded it could be inferred from strong circumstantial evidence. Henley disputes the court's finding, arguing it was clearly erroneous and seeks equal treatment with his co-appellants. The decision to consider Henley's jury tampering claim alongside his timely juror bias claim, as well as similar claims from his co-appellants, is made for judicial efficiency. All appellants are afforded the opportunity for further proceedings on both claims, avoiding separate proceedings for one appellant.

Henley is permitted to appeal the "untimely" portion of his new trial motion under Rule 2 of the Federal Rules of Appellate Procedure, which allows the court of appeals to suspend rules for good cause. The court finds sufficient reason to consolidate the adjudication of Henley's jury tampering claim with similar claims from other appellants, as well as claims related to racial bias. The case is remanded to the district court to assess whether the attempted bribery of juror Quihuis warrants a new trial and to reconsider the finding regarding juror O'Reilly's alleged dishonesty during voir dire. The district court is instructed to provide detailed findings on whether O'Reilly made racist remarks and their content. The remand is for further proceedings consistent with this opinion. Additional notes clarify that certain charges were severed and dropped, that references to "Henley" pertain to Darryl Henley, and outline relevant legal standards regarding juror testimony and deliberation.

In Marino v. Vasquez, the Ninth Circuit addressed juror misconduct, noting instances where one juror engaged in an out-of-court experiment with a third party and another relied on a dictionary definition inconsistent with court instructions. In United States v. Caro-Quintero, the presence of local newspapers in the jury room during deliberations raised concerns. The government's argument referenced multiple cases from the Seventh Circuit and other districts, asserting that the weight of evidence is relevant when assessing potential juror influence through bribery or threats. These cases suggest a thorough examination of whether the verdict was impacted by such influences, particularly considering the nature and extent of the evidence against the defendants. Notably, overwhelming evidence against defendants was deemed a factor in determining if extraneous influences were prejudicial or harmless. In contrast, the Dutkel case emphasized that the standard weight of evidence test does not apply in jury tampering cases, warning against reliance on this factor. The court in Tobias v. Smith found juror affidavits concerning racist comments during deliberations sufficient to warrant a hearing to investigate potential improper influences on the verdict. Similarly, Rule 606(b) allows for testimony regarding extraneous prejudicial influences, and courts have recognized the need to address allegations of juror misconduct, including racism, during deliberations.

An offer of proof indicated a significant likelihood that racial bias influenced the jury, and ignoring this evidence could undermine fundamental fairness. The court's review was limited due to the petitioner’s challenge under 28 U.S.C. § 2254, necessitating a stringent standard that differs from that applied in a direct appeal of a federal conviction. The reference to "Henley" pertains to Rex Henley. If Henley is barred from raising his jury tampering claim now, it would lead to a separate future proceeding under 28 U.S.C. § 2255. Although only one co-defendant appealed, relevant findings applied to both defendants, emphasizing that federal appellate procedures should treat them equally. The district court ruled that Henley’s evidence was not "newly discovered" but did not determine whether his prior knowledge of jury tampering affected his right to a fair trial. The district court retains the discretion to assess implications of Henley’s awareness. Precedent from the Fifth Circuit in United States v. Forrest allowed for a new trial despite a defendant’s involvement in jury tampering, clarifying this relief does not incentivize such actions due to the severe penalties associated with jury tampering, under 18 U.S.C. § 201. In Henley’s case, there are no allegations of his participation in the tampering, only awareness of the incident.