Federal Evidence Review

In crack cocaine distribution trial, the defendant waived appeal of possible challenged to extrinsic information considered during jury deliberations (which was raised in a juror’s note) when the defendant consented to the trial court allowing the juror to make reference to the juror’s “experience with drug users and his opinion about user amounts of crack” during the jury’s deliberations and a limiting instruction that admonished the jury to consider solely “the evidence admitted in the case”, in United States v. Booker, 576 F.3d 506 (8th Cir. Aug. 5, 2009) (No. 08-3561)

Sometimes an evidence argument on appeal has so many hoops to jump through that the chances of success appear slim, even when the evidence error at first seems glaring. The Eighth Circuit recently illustrated how the procedural maze to appeal can preclude review of what might otherwise seem a most compelling evidence issue. The issue arose just before jury deliberations and involved consideration by the jury of possible extrinsic evidence concerning one juror’s prior experience at a substance abuse agency.

In the case, officers responding to a disturbance call in a “neighborhood frequented by drug dealers,” observed in plain sight defendant Booker “pull[ ] a plastic bag from his waist band, drop[ ] it on the ground, and whisper[ ] something to [companion] Joiner. She then picked up the bag and attempted to conceal it behind his back.” The officers retrieved the bag and found it contained crack cocaine. At the defendant’s trial for possession of crack cocaine with intent to distribute, expert testimony was received that the plastic bag recovered by arresting officers contained “forty three individually wrapped rocks of cocaine.” The expert witness opined that this number, in conjunction with other evidence found in the case, was “consistent with street level dealing” in crack cocaine. After the parties had closed their presentations of evidence but prior to closing argument, a juror sent the following note to the trial judge:

“I used to run a substance abuse agency. Can I bring the knowledge of the usage habits of crack cocaine users into the jury deliberations, specifically that a user in my experience would probably never be in possession of 43 units of crack cocaine?”

Booker, 576 F.3d at 509.

As the opinion summarized, during juror voir dire, several questions had been asked of prospective jurors about their prior experience with drug abusers (e.g., members of the venire were asked whether they “kn[e]w anything about this case other than what [they] have heard in the courtroom here today” and whether they might be predisposed to partiality because the case involved drugs?). The juror who now disclosed his prior running of a substance abuse agency apparently did not respond to either question during voir dire. As a result, the trial court now faced “a situation in which it was not informed until the parties had rested that a juror had experience relevant to a critical issue” in the case. Booker, 576 F.3d at 510.

In order to resolve this issue, and as requested by the defendant, the trial court “met with the juror in the presence of counsel to determine whether the juror would be able ‘to consider the evidence ... [and] to change his opinion [ ] during deliberations.’“ As recounted by the circuit, at this meeting:

“When asked by the district court whether he remained ‘open mind[ed]’ and willing to ‘consider the comments of [ ] fellow jurors in deliberations’ the witness responded, ‘[y]es, I can.’ This response left the district court ‘very satisfied that he is still that good juror that we are looking for.’ The district court concluded that it need not prohibit the juror from bringing his experiences into deliberations if ‘a very strong jury instruction’ were issued explaining that while jurors ‘may consider th[e] evidence in light of their common sense and experience’ they can ‘only [ ] consider the evidence admitted in the case.’ Booker’s attorney did not object ‘to th[e] juror himself’ or to the ‘proposed solution to th[e] matter.’“

Booker, 576 F.3d at 509.

As agreed by the parties, the trial court delivered an instruction specifically constructed to deal with the importance of considering only the evidence admitted in the case. The jury convicted the defendant. On appeal, the defendant claimed the trial court erred in granting permission to the juror “with expertise in substance abuse to disclose to the jury his opinion on the issue of intent to distribute” (that is, that the juror could use his experience in running a substance abuse agency to inform other jurors that a normal drug user would normally never have as much crack as the defendant had, as was much more likely in a charge of intent to distribute rather than simple possession.

In affirming the conviction, the Eighth Circuit noted two barriers to the success of the defendant’s appeal.

Lack Of Record Because Of Failure To Use FRE 606(b)

First, the defendant failed to create any record for assessing what the juror had done, beyond mere speculation. In this connection, the defendant failed to make “any post trial request under Federal Rule of Evidence 606(b), which permits inquiry into whether any extraneous prejudicial information was improperly brought to a jury’s attention.” As a result, “the record is silent about what information juror Wagner may have disclosed to the other jurors based on his own experience, including about ‘usage habits’ of crack users and the significance of possessing 43 units of crack. Nor was there any exploration into the nature and extent of Wagner’s experience and knowledge.” Booker, 576 F.3d at 510.

Waiver Based On Party’s Consent To Procedure

Second, as the juror’s participation in the deliberations and permission to draw upon his experience in running a substance abuse program had been consented to by both the prosecution and the defendant. The circuit distinguished between forfeited issues, which are subject to plain error review, and waiver which is not reviewable on appeal. As noted by the circuit:

“Not only did defense counsel fail to object, but counsel affirmed that the defense had no objection to juror Wagner when it was clear from the context that Wagner was being granted permission to talk to the other members of the jury about his experience with drug users and his opinion about user amounts of crack. After the district court brought juror Wagner’s note to the attention of counsel, it revised the jury instructions in an attempt to address any concerns prompted by the request. Defense counsel reviewed the revised instructions and then stated, “[y]our honor, we have no objections to your proposed solution to that matter and I note that you have included language in Instruction No. 1 that addresses that.... And I don’t have any objections to that juror himself.”

Booker, 576 F.3d at 510 (footnote omitted).

In dismissing the defendant’s appeal, however, the circuit ultimately decided that it was precluded from considering the issue because the defendant had waived the issue since the defendant had “approved the procedure which appellant now attacks.” The circuit deemed it “clear” that the defendant had waived the issue – he had made an “intentional relinquishment or abandonment of a known right.” Booker, 576 F.3d at 511 (citing United States v. Olano, 507 U.S. 725, 733 (1993) (distinguishing forfeiture, “the failure to make the timely assertion of a right” from waiver, which it the intentional relinquishment thereof.)) According to the circuit, “waived claims are unreviewable on appeal.” Booker, 576 F.3d at 511 (citing United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997) (On a showing of waiver, “our plain error analysis [must come] to a grinding halt.”)).

Possible Collateral Attack

While the case resolved the defendant’s direct appeal, and the conviction was affirmed, the circuit noted in passing that the defendant “retains the right to raise a challenge to his conviction under 28 U.S.C. § 2255.” Booker, 576 F.3d at 511 n.3 (citation omitted).

As Booker makes clear, extreme care must be exercised in dealing with a question the court receives from a jury. As a practical matter, a party may not wish to offend a particular juror during questions posed to the juror outside the presence of other jurors or by dismissing a juror. In such a situation, the party must proceed cautiously to avoid problems of plain error or waiver, particularly if the party has not created a record from which the appeals court can engage in more than speculation.